The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1922-01-07
Railroad Held Responsible for
Injury to John Digger.
Case Against Union Pacific APP
pealed From Mitchell County.
WAS NOT AWARE OF DANGER
Common Law Wife Can't Di-
vOrce Herself, Court Holds.
Case From Wyandotte County
Is Reversed Today.

spons.bility on the shoulders of rail-
road company when it employs a man
of sub-normal physical and mental
ability, according to a far-reaching
opinion today by the supreme court
in an appeal from Mitchell county.
The opinion holds that the ordinary
rules of contributory negligence do
not apply in a suit brought to recover
for injuries of a deficient employe.
During the war John Digger was
employed as a section hand on the
Union Pacific railroad. His employ
ment was with the knowledge of Louis
Haines, his guardian. Dugger's in
capacity was known by the company s
agents at the time of his employment.
Labor was scarce and Dugger's serv-
ice was acceptable in view of existing
conditions
Ten men rode on the hand-car and
were in the crew of which Digger
was q member. Digger was given a
select place on the right rear handle
bar of the car. 1t was a sort of rec
ognition OF his incapacity. One day,
tho. man working near Digger jos
tied on the crowded car in an effort
to secure a better hold on the bars.
The next man lost his balance and
bumped against Digger. He was
thrown from the car and badly in
J
damages and the jury returned YER
dict for 81, 800.
In its defense the railroad company
asserted that Digger had violated the
rules of the company and was guilty
of contributory negligence. Justice
Dawson. who wrote the opinion af-
firminS the verdict of the lower court,
held that the railroad could not exact
from Digger the same standard of
duty to look out for himself which
the lazy imposes on laborers of ordi-
nary intelligence and experience.
1T cannot be said as a matter of
law" says Justice Dawson, that a
laborer of Dugger's mental and physi-
cal infirmities knew or should have
known the danger of being jostled off
an oYercrOwded hand-car. Whether
he knew this risk and assumed it was
a jury question, and the rule of law
embodied in the courts instructions
was precise and just-that unless Dug
ger was aware of the danger of his
situation, unless he had a realization
of it. he did not assume the risk as a
necessary incident of his employment"
Jolt for Common Law Wife.
When a woman lives with man as
his common law wife, it is not as easy
for her to divorce" herself as it was
to assume the common law marriage
relation, especially when she later
marries another man under the stat
utes and has children whom she seeks
to put beyond the protection of the
law in seeking to inherit the property
of her former common law husband.
This was the decision of the Kansas
supreme court today when it reversed
the Wyandotte county district court
jury verdict in the case of Emma l..
Kinney against the Woodmen of the
World and Ella May Kinney, inter-
veneer.
The case contains almost as many
marital relations tangles as could be
created. it appears. Thomas Kinney
the man whose property is the subject
of litigation, appears to have been an
unusual "Don" and the plaintiff, Mrs
'ohnson, was a woman of plural at
fections. 1t appears.
Kinney had a wife in Iowa who had
borne him a daughter. While living
with this wife he became engaged to
Emma L. Ellis. who was then 6 years
old; and they went to Des MOines to
be married. At Des MoineS Kinney
told Miss Ellis he was short of money
and said they might as well Just say
they were married" as thousands of
persons did this way there was no
harm to it. According to the evidence
contained in Justice Burch's decision,
Miss Ellis consented and they went to
a hotel in Des Moines. stayed over
night ana then went to Burlington,
Ia, where they told they were married
and lived together as husband and
wife.
Doubtless the reason Kinney did
not marry Miss Ellis was he was not
divorced from his wife" Justice Burch
said in the opinion. later Kinney's
wife obtained a divorce and Kinney
and Miss Ellis continued to live to-
gether; they moved to Kansas CITY,
Mo, and lived there until Miss Ellis
left him and went to St Louis She
had no children and thought she could
get out of the matrimonial relation
as unceremoniously as she got into If
A short time later she married a man
by the name of johnson and bore him
two sons who now live at Howard
Kan"
Kinney died. leaving an insurance
Motley in the Woodmen of the World
which Mrs. johnson sought to collect.
His daughter by his legal wife inter-
vened. but the jury gave a verdict in
favor of the common law wife
In reversing the case Justice Burch
upholds the sancitity of the marriage
relation. morality and common de-
cency saying: The public policy of
the state OF which the courts are
guardians, was involved. The law
does not permit the plaintiff to brand
her relations with johnson as adul-
furious and to bastardize her children
with the lightness which she affects
The presumption that her marriage
with johnson was legal is the highest
known to the law"
Adopted Daughter Wins.
Adopted children in Kansas not only
inherit from lineal ancestors but I'M
der the decision of the supreme court
inherit Glso from collateral relatives
OF the adopting parents. The broad
decision on inheritance was handed
down in an opinion by Justice Mason
in an appeal from Doniphan county.
Under the new rule fixed by the
supreme court. Daisy Anna Denton
inherits not only as the adopted child
and legal heir of William Denton, but
by virtue Of her adoption became a.
legal heir of Jacob Denton, bro
Their of the child's father by adoption.
The trial court in Doniphan county
held the girl had been legally adopt
ed. 1t also held that as a COL
lateral heir she had the right to come
into fun share of the estate of her
uncle by adoption.