34 P. 738 (Kan. 1893), Missouri Pac. R. Co. v. Hildebrand

Citation:34 P. 738, 52 Kan. 284
Opinion Judge:ALLEN, J.:
Party Name:THE MISSOURI PACIFIC RAILWAY COMPANY v. FREDERICK HILDEBRAND
Attorney:W. A. Johnson, for plaintiff in error: G. E. Manchester, and J. L. Wolfe, for defendant in error:
Judge Panel:ALLEN, J. All the Justices concurring.
Case Date:November 11, 1893
Court:Supreme Court of Kansas
 
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Page 738

34 P. 738 (Kan. 1893)

52 Kan. 284

THE MISSOURI PACIFIC RAILWAY COMPANY

v.

FREDERICK HILDEBRAND

Supreme Court of Kansas

November 11, 1893

Error from Coffey District Court.

FREDERICK HILDEBRAND, who was plaintiff below, while crossing the tracks of the Missouri Pacific Railway Company on F street, in Le Roy, received injuries, for which he brings this suit. F street runs north and south; the railroad tracks nearly east and west. The south track is called the "house track," and runs on the south side of the depot, which is located two blocks west of the crossing and of the water tank and coal chutes. The next track is the main line, distant about 73 feet from the house track North of the main track are other sidings, which are numbered 1, 2, and 3, respectively; the track nearest the main track being designated as "No. 1," and distant therefrom about 8 feet. Nos. 1 and 2 are nearer together, and No. 3 is about 19 feet north of No. 2. Plaintiff and his little girl, nine years old, crossed these tracks on their way home about 6 o'clock in the evening. Plaintiff himself testified that cars were standing on the south track, and that there were cars standing, he thought, on the main track; that after crossing the south track he looked both ways, did not see or hear any train moving, thought he was safe, and drove on; that, just as soon as he got past the standing cars, he looked west and saw a train coming, about 80 or 100 feet away. His horses were already on the track. He slapped his lines and "hollered" to his horses to go. They jumped right quick, but the caboose, which was being pushed ahead of the engine, struck the hind end of the wagon. The wagon box was thrown off, bottom side up, on the north side of the north track, and plaintiff thrown out on the ground beyond it. The horses ran away.

There was great conflict in the evidence as to the track the engine and caboose which caused the injury were on. The engineer, fireman and other witnesses testified that they were on the main track, while plaintiff and his little girl testified that they were on one of the side tracks, but they did not seem to be clear whether it was No. 1 or No. 2. The testimony of other witnesses as to the location of pieces of the broken wagon tended to corroborate plaintiff's statement. There was evidence tending to show that the bell of the engine was not rung, nor any other signal given, and the train hands testified that they were going at about 8 miles an hour. The jury rendered a verdict in favor of plaintiff for $ 500, and also answered a large number of special questions. Plaintiff had judgment, and defendant comes to this court.

Judgment affirmed.

W. A. Johnson, for plaintiff in error:

The court below erred in overruling the objections of the Missouri Pacific Railway Company, and in allowing the witness Otto Hines to answer the questions...

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