with the procedure prescribed by section 2477m, and that no other was available to the plaintiff as employee. The claim must necessarily have been asserted in court and tried according to the procedure by section 2477m, quoted. This was done, and there was no error in holding that the practice and compensation prescribed for situations where both employer and employee have accepted the terms, conditions and provisions of the act obtain. [3, 4] II. Exception is taken to the pleadings for that the petition did not allege plaintiff's freedom from negligence nor that the injuries suffered were the proximate result of negligence on the part of defendant. There was alleged, however: (1) The relation of employer and employee; (2) that the injury arose out of and in the course of such employment; (3) that the employer had rejected the employer's compensation act; and (4) damages in consequence of said injury and no more than these were necessary to be proven in order to make out a prima facie case for recovery. Section 2477m, Code Supp. 1913. It is a general principle of pleading that no more need be alleged than essential to prove in making out a case. Though pleading specific acts of facts constituting the alleged negligence is not essential to the statement of a cause of action (Gordon v. Railway Co., 129 Iowa, 752, 106 N. W. 177), yet if the petition contains allegations which, if true, constitute negligence, there is no occasion for clinching these by assertion that they do constitute negligence. The petition was sufficient. Mitchell v. Swanwood Coal Co., 166 N. W. 391; Mitchell v. Phillips Mining Co., 165 N. W. 108. III. A verdict for $250.16 was returned. On motion for new trial because of this being excessive the court reduced the amount to $200.16, which included all damages proven, together with interest thereon at the rate of 6 per cent. per annum from the time of the injury. Complaint is made about the allowance of interest. The claim was for unliquidated damages accruing largely after the collision. Had the damages been complete at the time stated, the rule would have been as stated. Jacobson v. Gypsum Co., 150 Iowa, 330, 130 N. W. 122. [6] Whether or not it was erroneous, however, may not be determined, for that the error, if any, was by failing to take exception to the instruction as exacted by section 3705a of Code Supp. 1913. Chumbley v. Courtney, 164 N. W. 945. A med. Preston, C. J., and Evans and Salinger, JJ., concur. SUPREME COURT OF KANSAS. GILMORE MONARCH CEMENT CO. (No. 21418.)* 1. MASTER AND SERVANT-AWARD OF COMPENSATION— FINDINGS AND JUDGMENT. The special findings of the court, awarding compensation to an injured workman, interpreted, and found not to be inconsistent with the judgment rendered. (For other cases, see Master and Servant, Dec. Dig. § 411.) 2. MASTER AND SERVANT-AWARD OF COMPENSATION— LUMP SUM-DISCRETION OF TRIAL COURT. Also held, that such findings do not show an abuse of discretion by the court in awarding compensation in a lump sum. (For other cases, see Master and Servant, Dec. Dig, § 385[20].) Appeal from District Court, Allen County. Action by Amos E. Gilmore against the Monarch Cement Company for compensation for injury while in defendant's employ. Compensation awarded, and defendant appeals. Affirmed. Sherman & Landon, of Kansas City, Mo., and Altes H. Campbell, of Iola, for appellant. Smith & Brobst, of Chanute, for appellee. JOHNSTON, C. J. Amos E. Gilmore recovered judgment against the Monarch Cement Company, awarding him compensation in a lump sum for injuries which he sustained while employed in defendant's plant. The court found that plaintiff's average weekly earnings for the year preceding the injury was $10.03, and, finding from the evidence that he was and would be partially incapacitated for labor for a period of eight years, awarded $5 per week for that period, not counting the two weeks following the injury. It amounted to $2,070, and the court provided for a deduction of $551.07, which plaintiff had already received as compensation and for medical treatment. Defendant claims that the allowance for the eight-year period was not warranted; but, in the absence of the evidence, the question is not open to review. The case is here upon findings alone, which are included in a memorandum opinion prepared by the trial judge. It is contended that the opinion indicates doubt about the liability of the defendant, and that this finding was a mere speculation. This contention is based upon a statement of the judge that: * Decision rendered, July 6, 1918. 173 Pac. Rep. 913. Syllabus by the Court. "It becomes necessary to find whether the plaintiff was and is totally or partially incapacitated for work as a result of such injuries. That he was so totally incapacitated for a time is clear, as before stated; but whether such total incapacity will remain for the period of eight years from the date of the injury, under the testimony, is speculative at best, but I am constrained to hold that for such a period of eight years from the accident he will be and is partially incapacitated from work as the result of the injury," etc. [1] The doubt expressed was as to total incapacity for the period named. The judge had just stated it was clear from the testimony that there had practically been total incapacity from the time of the accident until the trial; but he doubted whether the total incapacity would continue throughout the eight-year period. He was therefore constrained to resolve the doubt in favor of the defendant, and hence gave compensation on the basis of partial incapacity for that time, about which no doubt was expressed. Nothing is found in his opinion that impairs the force of the finding of parital incapacity. [2] It is next contended that the award of compensation in a lump sum was an abuse of discretion on the part of the court. Cases may be imagined where an award of a lump sum judgment might constitute an abuse of discretion (Ackerson v. Zinc. Co., 96 Kan. 781, 153 Pac. 530), but nothing approaching an abuse of discretion appears in the record of this case. The judgment is affirmed. All the Justices concuring. SUPREME COURT OF KANSAS. RASK ATCHISON, T. & S. F. RY. CO. (No. 21660.)* 1. MASTER AND SERVANT-FEDERAL EMPLOYERS' LIABILITY ACT. A railroad engineer cannot recover damages for injuries sutained by him in a railroad collision, brought about by his negligence in violating the rules of his company made for the government of his conduct, where he knew of the physical conditions in time to have prevented the accident, if he had obeyed the rules. (For other cases, see Master and Servant, Dec. Dig. § 243[7].) * Decision rendered, July 6, 1918. 173 Pac. Rep. 1066. Syllabus by the Court. (Additional Syllabus by Editorial Staff.) 2. MASTER AND SERVANT-FEDERAL EMPLOYERS' LIABILITY ACT-STATE STATUTE- EFFECT. Gen. St. 1915, §§ 8492-8495, do not enlarge a defendant railroad's liability over that created by Employers' Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1916 §§ 8657-8665). (For other cases, see Master and Servant. Dec. Dig. § 87.) Appeal from District Court, Montgomery County. Action by C. J. Rask against the Atchison, Topeka & Santa Fe Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, with directions to enter judgment for defendant. Wm. R. Smith, O. J. Wood, and A. A. Scott, all of Topeka, and Chester Stevens, of Independence, for appellant. C. E. Pile and L. E. Goodrich, both of Parson, for appellee. MARSHALL, J. The defendant appeals from a judgment for $15,000 rendered under the federal Employers' Liability Act, in favor of the plaintiff, for damages caused by injuries sustained by him in a collision between railroad locomotives while he was employed by the defendant as an engineer on a locomotive pulling an extra freight train. The defendant argues that the injuries of the plaintiff were caused solely by his own negligence in disobeying the company's rule 93. The rule reads as follows: "Rule 93. Stations having yard limits will be designated in special rule in time-table. All trains and engines will have the right to work within such yard limits, regardless of second or third class trains or extras, but will give way as soon as possible under their approach. "All except first-class trains will approach yard limits under control. The responsibility for accidents at such points will rest with the approaching trains." In response to this argument, the plaintiff contends that his conduct, at the time of the accident, was controlled by rule 99, two paragraphs of which read as follows: "When the train stops or is delayed under circumstances in which it may be overtaken by another train, the flagman must go back immediately with stop signals a sufficient distance to insure full protection. "When a train is backing out of a siding a flagman must go a sufficient distance to the rear to insure protection." The remainder of rule 99 gives detailed direction for the conduct of trainmen while working under that rule. The accident occurred at a switch running from the defendant's main line to the Joy Morton salt plant, about a mile and a half west of the defendant's side tracks in the city of Hutchinson. The Hutchinson yards of the defendant extended from its station. in Hutchinson to a point 2,500 feet west of the switch at the salt plant. At the west end of the yard there was a yard limits signboard. Whiteside, a station on the defendant's railroad, was situated about 3 miles west of the salt plant, and about 5 miles west of the defendant's station at Hutchinson. There was a block signal about a mile west of the defendant's station at Hutchinson, at the crossing of the defendant's road and that of the Missouri Pacific. There was another block signal at Whiteside. That part of the road from Whiteside to the signal at the Missouri Pacific crossing constituted one block. The plaintiff was familiar with all these conditions. The block signals were used to control trains operating through the block. At the time. of the accident, a switch engine, with its crew of five men, was working at the salt plant, switching cars to and from the defendant's road to the salt plant. There were cars standing on the main line track, and the switch engine was on the side track. The plaintiff came with his engine from the west. At Whiteside he had received signals and information that the track was clear in the block between Whiteside and Hutchinson. His train came at 25 or 30 miles an hour. The Rock Island railroad parallels the defendant's road on the south side. A Rock Island freight train was going west and passed the train on which the plaintiff was working about 200 feet west of the yard limits signboard west of the salt plant. The Rock Island engineer noticed the conditions at the salt plant, and saw that there would be an accident, unless the plaintiff stopped his train. The Rock Island engineer signaled the plaintiff to stop. The plaintiff saw the signal, cut off the steam on his engine, applied the emergency brakes, and whistled for a clear track. When he passed the yard limits signboard, he had reduced his speed to 10 miles an hour. The switch crew saw the plaintiff's train coming from the west. That crew attempted to run the switch engine from the side track onto the main track, and get the cars standing on the latter track and run them onto the side track, but was prevented from so doing by the collision which occurred. A member of the switch crew, when he heard the whistle of the plaintiff's engine, went to the switch stand, changed the switch, but finally left it open. The plaintiff's engine ran into the open switch and collided with the switch engine. The plaintiff's foot was crushed in the accident. This action was brought to recover damages for the injuries sustained by the plaintiff. The jury made special findings of facts as follows: "Q. 1. At what rate of speed was plaintiff's train traveling when it entered the yard limits at Hutchinson? A. 1. About ten miles an hours. "Q. 2. Did the plaintiff enter the yard limits at Hutchinson with his train under control, so that he could stop his train within the distance that the track was seen to be clear? A. 2. Yes. "Q. 3. If you answer the last question 'Yes,' state why plain Vol. II-Comp 42. |