Bressler v. The Chicago

• Citation: 74 Kan. 256,86 P. 472
• Decision Date: 06 July 1906
• Docket Number: 14,634
• Court: Kansas Supreme Court
• Parties: MARTHA J. BRESSLER, as Administratrix, etc., v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY

86 P. 472

74 Kan. 256

MARTHA J. BRESSLER, as Administratrix, etc., v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY

No. 14,634

Supreme Court of Kansas

July 6, 1906

Decided July, 1906.

Error from Reno district court; PETER J. GALLE, judge.

STATEMENT.

J. W BRESSLER jumped from a buggy in which he was riding and alighted upon the track of the defendant's railroad and was killed by a freight-train. The administratrix of his estate brought this action against the railroad company to recover damages for the negligence of the railroad company and its employees, which, it is alleged, caused the death of BRESSLER. The only negligence complained of is the failure of the engineer to sound the whistle as the train approached the crossing. The train which caused the accident was moving in an easterly direction, and the railroad-track crossed the west line of a certain section 228 1/2 feet south of the northwest corner of the section and again crossed the north line of the section 478 feet east of that corner. The railroad-track was straight and nearly level for about one mile west of the point where the accident occurred.

The deceased was riding with one Doctor Hammond in a top buggy upon which the side curtains were fastened and the top was half up. They came from the south and crossed the railroad-track on the west line of the section and turned at the northwest corner thereof and went east along the public road that crossed the railroad-track on the north line of the section 478 feet east of the corner. As the buggy was on the railroad-track at the crossing the deceased threw up his hands, striking the lines, and said to his companion "Doc, jump." Thereupon BRESSLER jumped from the buggy onto the north side of the track and was struck by the train and killed. Hammond remained in the buggy and crossed the track without injury to himself or his conveyance.

The triangular piece of land north of the railroad right of way, which right of way is fifty feet wide from the center of the track, had been set out to maple trees in rows six feet apart, the nearest row being six feet north of the right of way. These trees were then fifteen to twenty feet high and formed the only obstruction to a view of the railroad-track from any point on the road between the corner and the eastern crossing, except the telegraph-poles along the track. From the eastern point of this triangular plat of trees, which is 155 feet from the railroad-crossing, one can look westerly down the railroad-track from one-half a mile to a mile with no obstruction save the telegraph-poles. Doctor Hammond was sitting on the left, or north, side of the buggy, and just after they passed the point where the maple trees obstructed the view westward he leaned forward and looked around BRESSLER westward down the track but did not see the train. Hammond did not look westward down the track at any other time before crossing it, and there is no evidence that BRESSLER looked down the track or saw the train at any time until he exclaimed, "Doc, jump," and jumped from the buggy.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

RAILROADS--Injury at Crossing--Presumption of Due Care Overthrown. "The presumption that a person who was struck and killed by a train while driving over a railroad-crossing exercised due care to avoid injury is destroyed where it appears from the undisputed evidence that, if he had looked and listened before driving upon the crossing, he must have seen and heard the train approaching." (Rollins v. Chicago, M. & St. P. Ry. Co. [C. C. A.], 139 F. 639, syllabus.)

Prigg & Williams, for plaintiff in error.

M. A. Low, W. F. Evans, and Paul E. Walker, for defendant in error.

SMITH J. All the Justices concurring.

OPINION

SMITH, J.

The only negligence alleged against the railroad company was the failure to sound the whistle upon approaching the crossing. The defense was contributory negligence on the part of the deceased. The failure of the engineer to sound the whistle was proved and is uncontroverted, and the only question of law that remains to be decided is whether the evidence of the plaintiff...