Smith v. Chicago, Rock Island & Pacific Railway Co.

Citations

• 82 Kan. 136
• 107 P. 635
• 1910 Kan. LEXIS 208

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Master .and Servant — Notice of Defeats — Assumption that Master Has Discharged His Obligation. A railway engineer is not bound to know every defect existing in the ties and rails of the track over which he runs his engine. If the track, ties and rails are in place he has the right to assume that the company has discharged its obligation to keep them in reasonably safe repair.</p> <p>2. - Assumption of Risk. In an action by a railway engineer against the company to recover for personal injuries received in the derailment of his engine, caused by defective ties and rails, where the defects had existed for such a length of time that the railway company was bound to have notice of them, and where it was shown that the engineer had no knowledge of the defects and no opportunity of knowing of their existence except such as came to him in operating his engine over the track, held, that the risk as to the condition of the roadbed was not one which he assumed.</p> <p>3. Railroads — Agreement by Employee to Give Notice of Claim for Injuries — Waiver. In the action mentioned in the preceding paragraph the answer set up as a defense the failure of the plaintiff to give notice in writing of his claim for injuries, within thirty days, as provided in the contract of employment At the trial the plaintiff, without objection, testified that some one from the claim department of the company came to his house three weeks after the accident and took from him a written statement concerning the accident and his injuries. The defendant then introduced in evidence the written statement itself, signed by the plaintiff, stating the time, place, manner and cause of his being injured and the nature and extent of his injuries. Held, that the taking of the written statement constituted a waiver by the company of the failure to give the notice.</p>