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or the premises of said railway company; vantageous, provided, however, that such and I further agree that I will not claim contracts do not attempt to transgress the any wages or compensation for any work law or contravene public policy. But, in the that I may do during such time, nor claim exercise of their right to contract, persons to be in the employ of said company nor an are powerless, by contract or otherwise, to employé thereof during such time.
conclude one another by agreeing to place "Witness my hand and seal at Dodge City, upon the terms of their agreements a legal State of Kansas, this 4th day of August, 1904. construction different from that which the
"Elmer Tindall [Seal.] law places upon them, or a construction pro"Signed in presence of H. C. Duncan, Wit- hibited by public policy. Going beyond the ness."
mere conclusions stated in the contract, and
analyzing the facts, as they appear from the To this defense the plaintiff demurred, contract itself, for the purpose of determinwhich was sustained, and the defendant
defendant | ing the actual relations of the parties at the brings the cause here for review.
time Tindall was killed, the conclusion is The relation of the parties at the time irresistible that Tindall was in the service of Elmer Tindall was killed is one of the con- the railway company, and, as between him trolling questions in this controversy. The
and the company while in the discharge of plaintiff in error contends that under the con- duties assigned to him, he was entitled to tract upon which Tindall was permitted to protection from the negligence of the comgo and remain on its trains he was a mere pany's servants. licensee for his own personal benefit, and by The contract is adroitly drawn. Its apthe contract had expressly waived any claim parent purpose is to relieve the company for damages resulting to him in consequence from liability to Tindall for injuries susof the negligence of the company's agents, tained while working for the company, in servants, and employés. In determining the consequence of the negligence of the comrelation of parties courts are not bound by the
pany's agents, servants, or employés. In ilgreements of the parties as to what such re
expressing the duties to be performed by lations shall be or to the legal effect of its Tindall the language is permissive only; but terms. Notwithstanding such agreements, .
the services which the agreement contemwhenever the question is properly presented plates that Tindall should perform for the courts will analyze the elemental facts of the
company are sufficient to justify the conagreement and determine therefrom the actu
clusion that while performing such services al relations of the parties. In Missouri Pacif- he was an employé of the company. The ic Ry. Co. v. Ivy, 71 Tex. 409, 9 S. W. 346, 1
railway company was not conducting a free L. R. A. 500, 10 Am. St. Rep. 758, which was school for the education of freight brakein action for damages for personal injury
men, nor was Tindall riding gratuitously sustained by one who was shipping cattle on the defendant's train at the time he was under an agreement, indorsed on the back of
killed, but was working for the company. the shipping contract, that the shipper was
assisting in the operation of the train. Notan employé of the railway company, it was withstanding the agreement to the contrary said: "By the agreement indorsed on the
the elemental facts created the relation of back of the contract, he agrees that he is the
master and servant. The compensation of employé of the company, but that is evident
the company for the privileges granted to ly a fiction to provide for the release of the
Tindall was the work to be performed by company from damages for personal injuries
him as freight brakeman. In California a occasioned by the negligence of its servants.
railroad company is not liable for injuries It is a pretense, a subterfuge, upon which to
to an employé in consequence of the neglipredicate the discharge of the company for
gence of a co-employé, and in Weisser v. damages in a plausible form. The true re
Southern Pac. Ry. Co. (Cal. Sup.) 83 Pac. lations of the parties cannot be changed by
439, the relation of a railroad company to a such an agreement. It states a fact which
student brakeman, who was working for is untrue; the agreement that it is true does
the purpose of qualifying himself for a not make it so. It amounts to this: Know
brakeman, and for no other consideration, ing that a contract would be of doubtful va
was considered. It was urged by the raillidity that absolved the company or limited
road company that the brakeman was an its liability as a common carrier of passen
employé. The court said that it was unnecgers, the contract was devised in which the
essary, in disposing of the appeal to deterpassenger acknowledges himself to be an employé of the company, so as to contract
mine the relation of the parties, but it "has for its limited liability upon such relation,
been discussed by counsel, and its deterand give it the semblance of legality. If the
mination may be necessary for the purposes liability of a common carrier cannot be lim
of a new trial," and proceeded to pass upon ited in express terms, and by a direct agree
the question, using the following language: ment, it cannot be done upon false or coun
“As such 'student brakeman,' he was entireterfeited relations.” Persons capable of con
ly subject to the orders of defendant, and tracting are at liberty, inter parties, to make was required to perform such ordinary duany contract that may to them seem ad- ties of brakeman as were allotted to him, just as fully as if he had been assigned interest whatever, other than that which any regular employment for a pecuniary com- servant has in the result of his service, in pensation by defendant. It is difficult to the consequences of the discharge of his duconceive of any reason why one, situated as ties. We are therefore of opinion that the these circumstances show plaintiff to have court did not err in its direction to the been, should be held to be other than an jury.” In the cases cited there was no conemployé of the defendant, subject to all the tract attempting to determine the relation obligations imposed by that relation. Hle of the parties. The law, however, deteranines was certainly in iie service of defendant, that question, and it must be held in this regularly engaged in the doing of the de- case that the relation was that of master fendant's business. The simple fact that he and servant. was not to be paid any money for his sery- It is also contended that the waiver by the ices cannot affect the question. It was deceased of any claim for damages for inperfectly competent for him to agree to juries in consequence of the negligence of the serve an apprenticeship without pecuniary company, its employés, agents, or servants, is consideration. The important thing is that a complete defense in this action. With he voluntarily entered and was engaged in this we do not agree. Our statute provides the service of the defendant upon such that: "Every railroad company organized terms as he had seen fit to agree to. While or doing business in this state shall be liable so engaged in such service, there was no for all damages done to any employé of distinction, material to the question under such company in consequence of any neglidiscussion, between his situation and that gence of its agents, or by any mismanageof the other employés on the train." A ment of its engineers or other employés to similar question was before the federal court any person sustaining such damage." Gen. in Huntzicker v. Illinois Cent. R. Co., 129 St. 1901, § 5838. The state has an interest Fed. 548. 64 C. C. A. 78, where a young in the lives, health, and safety of its citizens, man wishing employment as flagman, upon and whenever a business, although lawful applying to the railroad company for such in itself, is dangerous to the lives or inposition, was informed that he had not had jurious to the health of the employés ensufficient experience. He then applied for, gaged in conducting such business, it beand was granted, permission to go upon the comes a question of public concern and the trains of the company, and by observation state may intervene in the interest of puband experience learn what the duties of a lic welfare. We have many such statutes flagman were. While so engaged, and upon enacted in the interest, and for the protechis own application, he was ordered to ap- tion, of different classes of citizens. The pear at the trainmaster's office to be re- owner or lessee of coal mines, worked by examined as to his proficiency. While riding means of shafts, is required to maintain upon a train to the trainmaster's office for
escapement and ventilating shafts in acsuch purpose a collision occurred, and he cordance with certain prescribed rules, and was killed. In determining the relation of is prohibited from having more than five the parties the court said: “As there was pounds of powder in any such mine at one no controversy over the facts, the question time. The protection thus provided by the became one of law, and the court performed state for the safety of its citizens is a matter a duty of its own in deciding it. The agree- of public concern and cannot be contracted ment between the parties, reduced to its away by the individual. In many other elements, was that the defendant was to states we find instances where the state has furnish the plaintiff the facilities for qualify- intervened for the protection of its citizens ing himself for the duties of a flagman; that who are engaged in business hazardous to is to say, it was to give him instruction and health. In Utah a statute was enacted protransportation over its road; not such trans- hibiting a certain class of minors from portation as is due to a passenger, but such laboring more than 8 liours in each 24. A as is ordinarily incident to the operation of contract was made between the employer freight trains by men in that service. In and one of his employés that the employé consideration of this, Fereday was to per- should work 12 hours in each 24. An action form such elementary and simple service was brought by the employé to recover for as he was capable of under the direction of the time so worked over the 8 hours. In the conductors of trains."
"Apply- passing on the question in Short v. Mining ing the controlling principles which we have Co., 20 Utah, 20, 57 Pac. 720. 155 L. R. A. indicated to the present case, it seems clear 003, the court said: “We are further of that Fereday at the time of his death was the opinion that the right to waive this a servant of the defendant. He was enjoy- legislative protection is without the power ing the privilege for which he served. He
of the employé. This law is in the nature was under the control of the defendant, and
of a state police regulation. Its object is the company would undoubtedly have been the good of the public as well as of the inresponsible for the manner in which he per- dividual. The state in this matter has formed his service; and, what is more impor- intervened in its own behalf. This protectant, under the test above stated he had no tion to the state cannot at will be waived
by any individual, an integral part thereof. the clerk to file a similar suit by such Assistant The fact that the individual is willing to
Attorney General need not be presented to that waive his protection cannot avail, the pub
court, but the Supreme Court will assume orig
inal jurisdiction. lic good is entitled to protection and consideration, and if in order to effectuate that
Original proceedings in mandamus by the object there must be enforced protection to
state of Kansas, on the relation of C. C. the individual, such individual must submit
Coleman, Attorney General, against C. E. to such enforced protection for the public
Woodbury, clerk of the district court of Crawgood.” A similar question arose in Rhode
ford county. Writ granted. Island, in Re Ten Hour Law, 24 R. I. 603, C. C. Coleman, Atty. Gen., and F. S. Jack54 Atl. 602, 61 L. R. A. 612. The question son, Asst. Atty. Gen., for plaintiff. O. T. arose under a law limiting the hours of the Boaz, B. S. Gaitskill, and J. J. Campbell, labor of an employé on a street car. Two for defendant. questions were submitted by the Governor to the judges of the Supreme Court: First, IS PER CURIAM. This is an original prothe law constitutional? Second, if constitu- ceeding in mandamus, brought by the state tional, can it be waived by contract? The of Kansas, upon the relation of C. C. Cole first was answered in the affirmative, and man, Attorney General of the state, askon the second question it was held that the ing for an order commanding C. E. Woodbury, purpose of the law was to limit the con- clerk of the district court of Crawford countinuous service of such employés in the ty, to file papers in an injunction suit. The interest of public safety, and that public application for the writ states that George safety cannot be made to depend on private H. Stuessi, as Assistant Attorney General contract. In considering a similar question of Crawford county, on February 17, 1906, in Holden v. Hardy, 169 U. S. 366, 397, 18 presented to C. E. Woodbury, clerk of the Sup. Ct. 383, 390, 42 L. Ed. 780, the court district court of Crawford county, his verisaid: “But the fact that both parties are fied petition praying for a permanent injuncof full age and competent to contract does tion against Peter Esch and Herbert Mousney, not necessarily deprive the state of the restraining them from maintaining a place power to interfere where the parties do not where intoxicating liquors were sold stand upon an equality, or where the public trary to law, and also a præcipe for sumhealth demands that one party to the con- mons, and his application in proper form tract shall be protected against himself. for a temporary Injunction on behalf of the "The state still retains an interest in his wel- state of Kansas against Peter Esch and fare, however reckless he may be. The Herbert Mousney, enjoining them from mainwhole is no greater than the sum of all taining a place where intoxicating liquors the parts, and when the individual health, were sold in violation of law, during the safety, and welfare are sacrificed or neg- pendency of the action for a permanent inlected, the state must suffer.'” For the junction, and requested that C. E. Woodbury, reasons suggested, a contract by one enter- as clerk of the district court of Crawford ing the service of a railroad company waiv- county, receive and file the papers and issue ing his right of action for damages which he a summons to the defendants therein, and may receive in consequence of the negli- that C. E. Woodbury, in violation of his gence of its agents, servants, or employés is duty as clerk, refused to file the papers and void.
refused to permit the Assistant Attorney The judgment of the trial court is affirm
General for Crawford county to commence ed, and the cause is remanded, with instruc- such action and to institute such proceedings. tions to proceed with the cause.
The writ was allowed, and C. E. Woodbury was commanded to file the papers so present
ed and issue the summons as prayed for, or JOHNSTON, C. J., and MASON, SMITH, PORTER, and GRAVES, JJ., concur.
show cause why he should not comply with
such order, on or before a day named in BURCH, J. (dissenting). I am not satis
the writ. Instead of complying with the orfied the parties to the contract in question
der, C. E. Woodbury made a return upon the were prohibited from making it, and there
writ, stating the following reasons why he fore dissent.
had not so complied: That a similar case had been instituted in the district court of
Crawford county by Stuessi as Assistant At(74 Kan. 877)
torney General of Crawford county, and upSTATE ex rel. COLEMAN, Atty. Gen., v. on application made to the district court it WOODBURY, Clerk of Court.
was held that Stuessi, as Assistant Attorney (Supreme Court of Kansas. Nov. 10, 1906.) General of Crawford county, had no authority COURTS --- SUPREME COURT - ORIGINAL JURIS
to institute such proceedings, and the cause DICTION--MANDAMUS.
was disinissed; and that this judgment wag Where the district court of a county has not appealed from or reversed. This he conpassed upon the authority of the Assistant Attorney General to institute certain proceed
cludes is a justification for his refusal. ings, and has held that no such authority is
This defense or reason for his noncomplivested in him, subsequent proceedings to compel ance with the order of this court appears
to have been abandoned in this court by his counsel, whose only contention is that this court had no jurisdiction to issue the writ of mandamus. The contention is that such application must be presented to the district court. This is generally correct, and, unless some reason is given why the application had not been made to the district court, this court will not act. The return of the defendant to the writ, however, furnished ample reasons why it would have been futile to have applied to the judge of the district court. If the facts stated in the return are true, it would have been a useless waste of time and energy to apply to the district court. This is never required. That court bad passed upon the right or authority of the Assistant Attorney General to institute such proceedings and had held that no such authority was vested in him. Under a showing of such facts, this court may act in the first instance. This being the only question pre sented, the peremptory writ is allowed.
It is therefore ordered that C. E. Woodbury, as such clerk, upon presentation, receive and file the petition, præcipe for summons, and issue the summons thereunder.
(74 Kan. 4871 MISSOURI, K. & T. RY. CO. et al. v.
JENKINS. (Supreme Court of Kansas. Nov. 10, 1906.) RAILROADS – ACCIDENT AT CROSSING - EviDENCE.
Upon the facts of this case, it is held a traveler upon a highway should have stopped to look before driving his team upon a railway crossing.
[Ed. Note.--For cases in point, see Cent. Dig. vol. 41. Railroads, $$ 1043-1070.] (Syllabus by the Court.)
Error from District Court, Miami County; W. H. Sheldon, Judge.
Action by F. F. Jenkins against the Missouri, Kansas & Texas Railway Company and others. Judgment for plaintiff, and defendants bring error. Reversed.
John Madden, W. W. Brown and J. E. Maxwell, for plaintiffs in error. Frank M. Sheridan, for defendant in error.
From there to the side track his view of both tracks toward the south was obstructed, and the cars on the side track continued to obstruct his view of the main track in that direction. He did not stand in the forward part of his wagon box where he could more quickly have seen, but, without reason, so far as the evidence discloses, took a position over the rear axle 18 feet from his horses' heads. As the team crossed the side track, the near horse shied slightly at the box car on the north, and drew his momentary attention in that direction. The team, however, was gentle, and at all times under control. When he looked to the south a north-bound train was upon him. He said he was listening and heard no train, that he knew a train was likely to pass at any time, and that he was familiar with the crossing and its surroundings. The jury found specially that he knew of the obstructions, and knew they cut off his view to the south; that he could have seen the danger of a collision before it took place had he stopped to look before driving upon the main track, and that he could have avoided the collision had be stopped to look and listen, but that he did not do so. The jury also found that the employés of the railway company in charge of the train discovered the driver's peril too late to avert the injury. Notwithstanding these findings, a verdict was returned for the plaintiff.
A series of parallel railroad tracks constitutes a series of separate dangers to a traveler upon a highway intersecting them. Peril succeeds peril until all are crossed, and caution must be exercised in the presence of each one. To look and listen once for all is not enough if there be opportunity to make further observations as the journey proceeds. Even though the view be obstructed until the first track is reached, if the second can then be scanned for danger, ordinary care requires that the occasion be improved. Ordinary care further requires that a man driv. ing a team across a railroad track, or a series of railroad tracks, shall not deprive himself of the opportunity of a prompt view by unnecessarily lagging behind while the team proceeds unguarded into danger. He must be vigilant in trying to see. The findings of the jury in this case make it obvious that if the driver had stood in the forward part of his wagon he would have seen the train and would have avoided the collision. Instead of this, he projected the team ahead of him almost the entire distance across a place of safety, and into danger before the line of his vision cleared the obstruction to the south. Situated as he was, the jury finds that if instead of driving on he had stopped to look he could have seen the train and could have prevented disaster. Having disabled himself from making timely use of his sense of sight, he should have offset the voluntary handicap by stopping to look. The fact that the driver was listening as he drove
BURCH, J. The plaintiff sued for the value of a team of horses, harness and wagon injured at a highway crossing over the defendant's tracks. There is no dispute about the material facts, and for the purposes of the decision, it may be conceded the railway company was negligent. The accident happened upon a main track running north and south. West of the main track 21 feet and 6 inches lay a side track filled with box cars which encroached upon both sides of the highway leaving a space some 20 feet in width for passage. The driver of the team approached the crossing from the west. His last look for a train before the instant the accident occurred was taken at a point 120 to 160 feet distant from the side track.
along does not exculpate him. When, in ad- out regard to technical errors or defects, or dition to listening, he could have looked and to exceptions which do not affect the subsaved himself, he should not have abused the stantial rights of the parties." opportunity. Whenever there is a field for The judgment of the district court is af. the exercise of both sight and hearing both firmed. faculties must be employed. The facts found specially by the jury require consideration in the light of other facts not found, but
(74 Kan. 672) merely admitted by the plaintiff's testimony.
STATE V. PARKHURST. Therefore judgment cannot be ordered upon (Supreme Court of Kansas. Nov. 10. 1906.) the findings.
INFORMATION – DUPLICITY — SEPARATE OFThe judgment of the district court is re
FENSES. versed, and the cause remanded. All the
Where an information charges, in one
count, robbery in the first degree and, in deJustices concurring.
scribing the assault, charges facts which constitute the crime of an assault with a deadly
weapon with intent to rob, such information is (74 Kan. 898)
not by reason thereof bad for duplicity.
[Ed. Note.-For cases in point, see Cent. Dig. STATE v. CONNOR.
vol. 27, Indictment and Information, $ 379.] (Supreme Court of Kansas. Nov. 10, 1906.) )
(Syllabus by the Court.) 1. CRIMINAL LAW-TRIAL-ORDER OF PROOFDISCRETION.
Appeal from District Court, Riley County: In a trial of a criminal prosecution, the Sam Kimble, Judge. order of proof is a matter of discretion with the
C. G. Parkhurst was convicted of robbery, court.
and appeals. Affirmed. [Ed. Note.For cases in point, see Cent. Dig. vol. 14, Criminal Law, $ 1609.]
Robert J. Brock and Alvin R. Springer, 2. LARCENY – SUFFICIENCY OF EVIDENCE – for appellant. C. C. Coleman, Atty. Gen., IDENTIFICATION.
and A. M. Story (C. B. Daughters, of counIn a prosecution for larceny. identification of defendant by one witness was sufficient to
sel), for the State. carry the case to the jury.
[Ed. Note. For cases in point, see Cent. Dig. SMITH, J. Our attention is first chalvol. 32, Larceny, $ 169.}
lenged to the information, and it is urged Appeal from District Court, Rush County ; that the information is bad for duplicity in Chas. E. Lobdell, Judge.
that it charges two felonies in one count, Guy Connor was convicted of larceny, and one of an assault with a deadly weapon with appeals. Affirmed.
intent to commit robbery under section 2023
of the Crimes and Punishments Act (Gen. D. A. Banta, for appellant. C. C. Coleman, Atty. Gen., and J. W. McCormick, for the
St. 1901), the other, robbery in the first deState.
gree under section, 2064, of that act. The
objection is not well taken. An assault PER CURIAM. Appellant was convicted
with intent to rob might be regarded as the of the larceny of wheat, and appeals.
first step, and an assault with an attempt The order of proof was a matter of dis
to rob as the second step toward the comcretion with the court, which was not abused pletion of the crime of robbery in the first in this case. The conclusions of the witness degree. They are essentially crimes of the Werhahn, identifying the wheat, were not ob- same character if not logically grades of jected to at the time. Facts, too, were stat
the same crime. Where only the higher ed which formed a chain of circumsances degree of crime is specifically charged, an rendering the proof of value following com
information is not bad for the reason that petent. Identification of appellant by one it charges facts which would, if established, witness was sufficient to carry the case to justify a conviction for another crime of like the jury. It was not improper for the wit- nature, but of a lower grade, especially ness Clare to give his version of his talk where such facts are ingredients of each with the county attorney, and the form in crime. State v. Hodges, 45 Kan. 389; 26 which it was given was not materially preju- | Pac. 676. In complaining that the money. dicial. The difference between the weight of alleged to have been taken, was not deevidence read to the jury by the stenographer scribed with sufficient certainty, the appeland evidence which in the presence of the lant asks us to assume that the money said jury he read to himself and then stated to to have been in the possession of the county the jury is not sufficient to work a reversal attorney at the time he drew the informaof the case.
tion was the identical money taken. The The word "should," as used in the instruc- testimony of the appellant and his whole tions to the jury, conveyed the sense of duty contention is that there was no money taken. and obligation, and could not have been mis- He does not seem to have heen prejudicet. understood. The evidence in the case is suf. The alleged variance between a "gold filled ficient to uphold the verdict. Section 293 of watch" and a "gold watch" is fully anthe Code of Criminal Procedure reads: "On swered adversely to appellant in State v. an appeal the court must give judgment with- Alexander, 66 Kan, 726, 72 Pac, 227. We