64 P. 624 (Kan. 1901), 11,859, Bush v. Union Pacific Railroad Company

Docket Nº:11,859
Citation:64 P. 624, 62 Kan. 709
Opinion Judge:GREENE, J.:
Attorney:Allen & Allen, for plaintiff in error. A. L. Williams, N. H. Loomis, and R. W. Blair, for defendant in error.
Case Date:April 06, 1901
Court:Supreme Court of Kansas

Page 624

64 P. 624 (Kan. 1901)

62 Kan. 709




No. 11,859

Supreme Court of Kansas

April 6, 1901

Decided January, 1901.

Error from Shawnee district court; Z. T. HAZEN, judge.


THIS action was brought by the plaintiff in error to recover damages for injuries which she claims she sustained at a railroad-crossing by reason of the negligence of the defendant in error.

The facts are substantially as follows: The plaintiff, a young lady, was invited by W. A. C. Bowhay to ride with him on the evening of August 16, 1899. They drove east on what is called the Grantville road to Calhoun bluffs. This road runs east on the north side of the Santa Fe and Union Pacific tracks for about three-fourths of a mile from Topeka, where it crosses the tracks, and from there it runs on the south side of the Union Pacific and within seventy-five feet of its tracks, and between it and the river to the bluffs. They started on their return trip at about 9: 15 or 9: 20, and drove slowly back on the same road, until they arrived within 150 or 200 feet of the crossing of these two tracks. Their attention was attracted to a freight-train on the Union Pacific railroad coming from the east. They stopped for this train to pass. They then proceeded, and, as they started, both of them looked down the track to ascertain if another train was coming, and none was in sight. In driving from the point where they stopped for the train to pass, until they arrived within fifty feet of the crossing, they were driving in a westerly direction parallel with the track. At this point the road turned at a right angle to the right to cross the track. From this point either could have seen this approaching train at least 1300 feet. From the time they started from the point where they had stopped for the freight-train, neither of them looked again until the front feet of the horse were upon the first rail of the track, when the plaintiff in error looked down the railroad, saw the train, and exclaimed that a train was approaching. Bowhay made an effort to get out of the way, but the train struck the horse, killing it, demolishing the buggy, and seriously injuring the plaintiff in error.

Neither of them was familiar with this crossing. Bowhay had crossed it but once prior to this time, and that was in the preceding July, on a dark night, and in approaching it this time he says that he was not fully aware of what crossing it was. This was a clear moonlight night, no wind blowing. Bowhay testified that he thought he was perfectly safe in crossing, as, under the rules of the company, one train could not follow another in less than ten minutes. He was not expecting a train from that direction for at least ten minutes, because of the fact that the freight had just passed. The plaintiff in error did not testify on this question. This crossing is about three-fourths of a mile from Topeka. The highway upon which these people were driving is one of the main highways into the city. The other roads from that side of the city, and beyond this point, intersect this road before reaching this crossing. This road is used very con-considerably, not only by persons coming to and going home from the city, but by...

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