Atchison

• Citation: 31 P. 674,50 Kan. 16
• Court: United States State Supreme Court of Kansas
• Decision Date: 10 December 1892
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. M. W. PRIEST, as Administrator of the estate of James Priest, deceased

31 P. 674

50 Kan. 16

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. M. W. PRIEST, as Administrator of the estate of James Priest, deceased

Supreme Court of Kansas

December 10, 1892

Error from Sedgwick Common Pleas Court.

ON the 2d day of August, 1887, James Priest, in crossing the tracks of a railroad operated by the Atchison, Topeka & Santa Fe Railroad Company, in Wichita, was run over by the cars of the company. Subsequently M. W. Priest, as administrator of the estate of James Priest, deceased, brought his action against the railroad company to recover $ 10,000 as damages, alleging --

"That James Priest, his intestate, was passing along a public highway in the city of Wichita on foot, and, in attempting to cross the track of the defendant, was, by the negligence of the defendant's servants, in the management of its cars upon its track, run over by the cars of the defendant, and then and there instantly killed; that his intestate, at the time, and while attempting to cross the track of the defendant, was in the exercise of due care and caution on his part, and was run over and killed wholly by reason of the wrongful acts and negligence of the servants of the defendant in the management and control of its cars on its track in prosecuting the business of the defendant."

Trial had before the court with a jury. The following are the special findings of the jury:

"1. Is it a fact that the deceased at the time of his death was about 70 years of age; was occupied as a huckster, whenever he did anything, in buying butter, poultry, and produce, and selling them on foot, in the city of Wichita, and that he had no office or storeroom in which such business was conducted? A. Yes.

"2. Is it not a fact, that at the time of the injury, the plaintiff's intestate was in full possession of his faculties of sight? A. Yes.

"3. Is it not a fact that it was a fair day when the injury was done, and about 2 o'clock in the afternoon? A. Yes.

"4. Is it not a fact that the center of the main track of the railroad operated by the defendant runs north and south and is straight for a long distance on each side of where the injury occurred, and that the center of said main track is about 80 feet east of the west line of Fifth avenue? A. Yes.

"5. Is it not a fact that plaintiff's intestate approached the point where the accident occurred from an easterly direction, and that in approaching said point there was nothing to prevent him from seeing the approaching cars from any direction, on the main or side track of the defendant? A. Yes.

"6. If you find from the evidence that there was anything to prevent the plaintiff's intestate from seeing the approaching cars as he approached the tracks, describe what it was, giving location. A.

"7. Is it not a fact that the Wichita & Southwestern railroad was rightfully constructed at the point where the injury occurred, and that said railroad was being operated by the defendant? A. We presume so.

"8. Is it not a fact that the injury occurred on the Wichita Southwestern railroad, and the said road was operated by the defendant at that time? A. Yes.

"9. Is it not a fact that the injury occurred on the west rail of the main track, between First and Second streets, a little north of the center of the block, and about 77 feet east of the west line of Fifth avenue? A. Yes, about center of block.

"10. Is it not a fact that the Wichita & Southwestern Railroad Company owned in fee a strip of land 50 feet in width along the east side of Fifth avenue, in Meade's addition to the city of Wichita? A. No."

The jury returned a verdict against the railroad company for $ 3,500. Subsequently, judgment was rendered in favor of the plaintiff and against the company, upon the verdict, for the amount returned. The railroad company excepted, and brings the case here.

Judgment reversed and cause remanded.

Geo. R Peck, A. A. Hurd, and Robert Dunlap, for plaintiff in error:

As it is manifest from the evidence that, had deceased looked before he attempted to cross the tracks, he could have seen the approaching cars, he must be held guilty of contributory negligence, either in failing to look, or, if he looked, in attempting to cross the tracks in front of the approaching cars, and cannot recover even though the accident happened in a public highway. A. T. & S. F. Rld. Co. v. Townsend, 39 Kan. 119; U. P. Rly. Co. v. Adams, 33 id. 427; Beach, Contr. Neg., § 63; Durbin v. Oregon Rly. & Nav. Co., 17 P 7. See, also, Fletcher v. Fitchburg Rld. Co., 21 N.E. 332; Blight v. C. & A. Rld. Co., 21 A. 995; Pa. Rld. Co. v Bell, 15 id. 561; Marland v. P. & L. E. Rld. Co., 16 id. 623, 624; C. & E. Ill. Rld. Co. v. Hedges, 37 Am. & Eng. Rld. Cas. 516; Railroad Co. v. Houston, 95 U.S. 702; Galveston &c. Rld. Co. v. Bracken, 14 Am. & Eng. Rld. Cas. 691; Gebhardt v. Detroit &c. Rld. Co., 44 N.W. 1045; Korrady v. Lake Shore &c. Rld. Co., 29 N.E. 1069; Kelley v. H. & St. J. Rld. Co., 13 Am. & Eng. Rld. Cas. 638; same case, 75 Mo. 138; Moody v. Railroad, 68 id. 470; Md. Cent. Rld. Co. v. Neuber, 62 Md. 391; same case, 19 Am. & Eng. Rld. Cas. 264; Grows v. M. C. Rld. Co., 67 Me. 100; Tolman v. S. B. & N. Rld. Co., 98 N.Y. 198; C. & A. Rld. Co. v. Jacobs, 63 Ill. 178.

Stanley & Hume, for defendant in error:

Was it shown that the deceased was guilty of such contributory negligence as precludes a recovery? We submit that contributory negligence is never presumed, and that the burden of showing it rests on the defendant. The determination of the question must be reached by a consideration of all the circumstances of the particular transaction. There can be no arbitrary rule to the effect that every man approaching a railroad track must in every case stop and look and listen for approaching cars before attempting to cross. He may see cars approaching and still not be guilty of negligence in attempting to cross in front of them. The same degree of caution which prudence would dictate to the driver of a team would not be a fair rule to apply to a man on foot. It might not be imprudent for the latter to attempt to cross, while under the same condition of things it would be gross negligence for the former to try it. Therefore, we say that the doctrine of the cases cited by plaintiff in error requiring the travelers on the highway to look and listen cannot be made to control the deceased under the circumstances of this case.

The making of flying switches in populous districts of cities has long been judicially condemned as criminal negligence, even as against trespassers on the track. See Brown v. N. Y. C. Rld. Co., 32 N.Y. 597; Beach, Contr. Neg. (1st ed.), p. 223; id. (2d ed.), § 217, and authorities cited. Even if deceased was a trespasser upon the track, the company, being guilty of gross negligence toward him, is liable. S. & N. A. Rld. Co. v. Donovan, 4 So. 119; Shelby v. C. N. O. & T. P. Rly. Co., 3 S.W. 157; W. & W. Rld. Co. v. Davis, 37 Kan. 743.

Sending these cars on their wild career unattended by any brakeman or other means of controlling them estops the company to say that the accident could not have been avoided by ordinary care on its part after the presence of the deceased on the track might have been discovered by a brakeman, if brakemen had been placed where they belonged. See Kay v. Pa. Rld. Co., 65 Pa. 269.

In considering the question of contributory negligence in this case, it must be constantly borne in mind that contributory negligence on the part of the deceased cannot be presumed. St. L. & S. F. Rly. Co. v. Wearer, 35 Kan. 424. See, also, Schum v. Pa. Rld. Co., 107 Pa. 8. It must be borne in mind that, in every case where the "look-and-listen" doctrine has been applied, it has been in regard to an approaching, moving train, the progress and direction of which could not be mistaken. The train being headed in an opposite direction, the deceased was not bound to anticipate that it would start backward without warning. The court cannot ignore the universal custom of giving warning when cars are started, everywhere and under all circumstances, nor the fact of the universal reliance of all people acquainted with trains running on such warning being given. See McWilliams v. Railroad Co., 31 Mich. 274; Robinson v. Railroad Co., 48 Cal. 409.

HORTON, C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

The facts in this case are undisputed, except upon the part of the plaintiff below it is claimed that the railroad tracks were laid along a public street, and that the point where the accident happened was an alleyway or crossing, used by the public generally, connecting with the street along which the tracks were laid, and that it was the custom of the public to cross and recross the tracks, both as footmen and with teams. On the part of the railroad company, it is asserted that the place of the accident is upon the private grounds of the company, and that the deceased was a trespasser thereon at the time of the accident. In disposing of this case, we assume the claim of the plaintiff below to be true, and that the place where the injury occurred was used as a crossing by the public, and that the deceased was using such crossing or alleyway at the time he was killed. James Robertson, a colored man, called by the plaintiff below, was the only witness, so far as it appears from the record, who saw James Priest, deceased, just before and at the time he was killed, upon the track of the railroad company. He testified very clearly as to all the facts concerning the matter. Priest, at the time of his death, was 70 years of age, and by occupation a huckster. He lived with his wife and a son, 28 years of age, at 442 Washington avenue, in Wichita, on the east side, but not very far from the railroad tracks. After dinner, on the day h...