Bush v. Union Pacific Railroad Company

Decision Date06 April 1901
Docket Number11,859
Citation62 Kan. 709,64 P. 624
PartiesVIDA BUSH v. UNION PACIFIC RAILROAD COMPANY
CourtKansas Supreme Court

Decided January, 1901.

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

STATEMENT.

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 residents of Topeka who drive out in the evening for pleasure. The distance between the Santa Fe and Union Pacific tracks at this point is ninety-nine feet.

This incoming passenger-train neither blew the whistle at the whistling-post nor rang the bell at the crossing. It was behind time and running at about its usual schedule rate--fifty miles an hour. When the freight had cleared the crossing, these parties started to drive across, and the time between which the freight-train had cleared this crossing and the arrival of the passenger, according to the evidence could not have exceeded two minutes and may not have exceeded one.

When the plaintiff in error had introduced her evidence and rested, the defendant in error filed a demurrer thereto, which the court sustained, and a judgment was rendered against the plaintiff in error for costs. She brings the case to this court alleging error.

Judgment affirmed.

Allen & Allen, for plaintiff in error.

A. L. Williams, N. H. Loomis, and R. W. Blair, for defendant in error.

OPINION

GREENE, J.:

It is not contended by counsel that plaintiff in error is entitled to recover in this action unless her conduct in going upon the railroad-crossing without looking for an approaching train can in some way be excused. They forcibly insist that she is excusable in that the railroad company, by its agents, negligently and wrongfully misled and put her off her guard, and that, but for such negligence and wrongful acts, she would not have gone upon the track. It is claimed that, being a young woman of only seventeen years, she should not be held to that strict accountability required of one of maturer years. It is further contended that, even if Bowhay was guilty of contributory negligence, such negligence was not imputable to her.

In Elliott on Railroads, section 1171, the principle involved in this first proposition is stated as follows:

"Where the employees of a railroad company, by negligence or wrongful acts, mislead a traveler and put him off his guard, the company may be liable, although the traveler may have done that which but for the wrongful or negligent acts of the company must have been considered negligence on his part. The negligence of the company will not, however, excuse the traveler for a failure to himself exercise ordinary care."

It is but ordinary care for one who is attempting to cross a railroad-track to look for an approaching train, and no negligence on the part of defendant in error would excuse the plaintiff in error from exercising such care. One attempting to cross a railroad-track must use his senses of sight and hearing and not rely entirely upon some rules, or supposed rules, of the company. The rules put in operation from time to time by a railroad company regulating the speed of its trains, the distance each shall run or the time or distance such trains shall remain apart are mere conveniences better to enable such company systematically to carry on its business, and are not intended to be a warning or notice to the public that trains will not be run except on schedule time.

In T. W. & W. R. W. Co. v. Jones, 76 Ill. 311, 315, in speaking of irregular trains, the court used this language:

"There is nothing which can relieve a person from the duty of exercising due care and caution at a railroad-crossing. It is not always the case that trains are on time, as is well known; hence the...

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