Atchison v. Judah

• Decision Date: 11 October 1902
• Docket Number: 12,670
• Citation: 70 P. 346,65 Kan. 474
• Court: Kansas Supreme Court
• Parties: ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. NANCY J. JUDAH

70 P. 346

65 Kan. 474

ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. NANCY J. JUDAH

No. 12,670

Supreme Court of Kansas

October 11, 1902

Decided July, 1902.

Error from Atchison district court; W, T. BLAND, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS -- Injury at Crossing. A traveler on the highway who is about to cross a railroad-track, and who is already warned of the approach of a train in time to escape injury, cannot complain of the negligence of the railway company for its failure to give signals of danger.

2. RAILROADS -- Speed of Trains. In an open country where the view of a traveler on the highway is unobstructed, a railway company is not chargeable with negligence in running its passenger-trains over a road-crossing at a speed of forty to fifty miles per hour.

3. RAILROADS -- Immaterial Question of Negligence. Whether the carelessness of the driver of a wagon can be imputed to another riding with him, who is injured at a road-crossing in a collision between the vehicle and a railway-train, becomes immaterial when it is found that the railway company was guilty of no acts of negligence toward the occupants of the wagon.

A. A. Hurd, and O. J. Wood, for plaintiff in error.

C. D. Walker, and J. L. Berry, for defendant in error.

SMITH J. All the Justices concurring.

OPINION

SMITH, J.:

This was an action by Nancy J. Judah, as mother and next of kin of Fannie Judah, to recover damages for her death. She had judgment in the district court.

Jennings D. Judah, the husband of the plaintiff below, and his two daughters, Fannie and another, were killed in a collision between a spring wagon in which they were riding and an engine pulling a passenger-train of plaintiff in error. The accident happened in January, 1898, about six o'clock P. M., at a crossing a short distance west of the city of Atchison, where what is known as the Monrovia road passes over the tracks of the Missouri Pacific Railway Company, the Central Branch Union Pacific Railway Company, and the Atchison, Topeka & Santa Fe Railway Company, in the order named, beginning from the north. The wagon road runs from the north in a southwesterly direction across the tracks.

Jennings D. Judah, accompanied by his two daughters, started from Atchison toward their home in the country. He was driving the team. When they reached a point several feet north of the Missouri Pacific track, which is about fifty feet north of the track of plaintiff in error, a switchman whose watch house, or "shanty," was about 140 feet north from the center of the Santa Fe track, south of the wagon road, and eight or nine feet north of the Missouri Pacific railway track, heard the voices of persons approaching. About this time he saw the headlight of an engine coming from the west. A few seconds later he heard the whistle sounded eighty rods distant. Immediately he heard one of the women in the wagon exclaim, "Stop; there comes a train!" He then took his lantern, went out, and saw a team of horses and a spring wagon approaching from the northeast. The team was then sixty-five feet distant from the Santa Fe track. He shouted, as the jury found, in more than a moderate tone of voice, "Hold on; you can't make the crossing!" The team was going at a brisk trot and continued at the same speed until the collision with the locomotive. Eighty rods from the crossing the engineer sounded four blasts of the whistle. The jury found that the bell was not rung. They also found that, as soon as the engineer learned that there was a team going toward the crossing, he applied the air-brakes with full force. The negligence of plaintiff in error was found by the jury, in answer to a particular question, as follows:

"Ques. If you find that deceased came to her death by or through the fault or negligence of the defendant, then state fully all the facts and things which you find from the evidence constituted the said fault or negligence of the defendant. Ans. Excessive rate of speed over a crossing which had an unusual amount of travel over same, and failing to provide proper and reasonable precautions."

The testimony introduced by plaintiff below tended to show that the train was running at a speed of forty to fifty miles per hour. It is an established fact that the occupants of...