Smith v. Atchison, Topeka & Santa Fe Ry.

RICHARDS, J.,

pro tem.

This appeal was originally taken to this court and was by it assigned to the district court of

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appeal for the second district. The justices of 'that court, being unable to agree, it ha" been transferred to this court for hearing and determination. As to all of the points presented upon this appeal, with one exception, the opinion of Mr. Victor E. Shaw, written while the case was before the district court of appeal, correctly determines them against the appellants’ contention, and hence that portion of his said opinion, reading as follows, is hereby adopted as the decision of this court:

“Action to recover damages for personal injuries alleged to have been sustained as the result of defendants’ negligence.

1 “Upon a verdict in favor of plaintiff, whereby his damage was fixed at fifteen thousand dollars, judgment therefor was entered against the defendants, the Bailway Company and Ernest Howard, who was conductor in charge of the passenger train upon which plaintiff was a brakeman when injured. Thereafter, defendants moved for a new trial, which motion was by order of court denied upon condition, complied with, that plaintiff in writing remit seven thousand dollars of the fifteen thousand dollar judgment so entered. From this judgment and the order so made denying their motion for a new trial defendants appeal.

“As a separate defense, the answer of■ the Bailway Company alleged that at the time when plaintiff entered its employ he executed a written document, designated in the record as Exhibit ‘B,’ which contained a provision that, as consideration for such employment, he agreed, among other things, that if while in the service -of said defendant he should /sustain personal injury for which he should make claim against the company for damages, he would, within thirty days after receiving such injury, give notice in writing of such claim to the general claim agent or claims attorney of said defendant, wherein should be stated the time, place, manner and cause . of the injury, together with the nature and extent thereof and claim therefor, ‘to the end that such injury may be fully, fairly, and promptly investigated,’ and that his failure so to do within the time so specified should be a bar to the institution of any suit on account of such injury. It was further alleged and admitted that he failed to give such notice within the time specified or at all. At the trial, and in support of said separate defense so alleged in the answer, the defendant Bailway Company offered this document, Exhibit ‘B,’ in evidence, to which an objection interposed was overruled, with