Campbell v. Kansas City

• Decision Date: 06 July 1895
• Citation: 40 P. 997,55 Kan. 536
• Court: Kansas Supreme Court
• Parties: JAMES M. CAMPBELL, as Administrator of the Estate of David G. Campbell, deceased, v. THE KANSAS CITY, FORT SCOTT & MEMPHIS RAILROAD COMPANY

40 P. 997

55 Kan. 536

JAMES M. CAMPBELL, as Administrator of the Estate of David G. Campbell, deceased, v. THE KANSAS CITY, FORT SCOTT & MEMPHIS RAILROAD COMPANY

Supreme Court of Kansas

July 6, 1895

Error from Johnson District Court.

ACTION by James M. Campbell, as administrator of the estate of David G. Campbell, deceased, against The Kansas City, Fort Scott & Memphis Railroad Company to recover damages for the death of plaintiff's intestate. The court sustained a demurrer to plaintiff's evidence, and he brings the case here. All the material facts are stated in the opinion, filed July 6, 1895.

Judgment affirmed.

A Smith Devenney, for plaintiff in error.

Wallace Pratt, I. P. Dana, and Chas. W. Blair, for defendant in error.

JOHNSTON J. ALLEN, J. MARTIN, C. J., concurring.

OPINION

JOHNSTON, J.:

James M. Campbell, as administrator of the estate of David G Campbell, deceased, brought this action to recover damages for the death of David G. Campbell, alleged to have resulted from the gross negligence of the railroad company. In the petition it was averred that on November 11, 1890, in the day-time, David G. Campbell was walking upon the railroad-track of the company, near the village of Merriam, but not at or upon any railroad-crossing, and that while so walking, a passenger-train approached on the same track, and going in the same direction, and that the persons in charge of the train managed it in a grossly negligent, reckless, willful and wanton manner, and at a high, unusual, and reckless rate of speed, so as to run against, knock down, and run over David G. Campbell in a violent and forcible manner, causing injuries from which he died after a lapse of about 10 minutes. The answer of the railroad company was a general denial, and an averment that the injury and death of Campbell were due to his own negligence. When the testimony of the plaintiff was finished, the court sustained a demurrer to the same, holding it to be insufficient to warrant, a recovery.

It appears that Campbell resided with his family upon a farm about one-fourth of a mile from the railroad-track and the town of Merriam, where he had resided for many years. A highway called "Main street," running east and west past Campbell's farmhouse, crossed the railroad-track, to the post-office and other buildings. The railroad runs north and south through Merriam. Between the Campbell farm and the railroad was a highway, running parallel with the railroad, from the town to Merriam park. On November 11, 1890, at about 10 o'clock A. M., Campbell came from the post-office east of the track, walked west on Main street until he arrived at the railroad-track, and then turned south toward Merriam park. The track had recently been changed, and the men were then engaged in ballasting and surfacing a portion of the track over which Campbell was walking. A passenger-train going south was due about that time, and as the line of the road was straight there was an unobstructed view for a considerable distance up and down the track. A passenger-train came from the north, traveling in the same direction that Campbell was, composed of an engine, tender, baggage-car, mail-car and four or five passenger-coaches. It did not stop at Merriam station, but as it approached Main-street crossing it gave the usual whistle, and while running over the new track the speed of the train was somewhat slackened. When within about 364 feet of the place of accident, the engineer discovered that Campbell was walking upon the track, and several blasts of the whistle in the nature of danger-signals were given. After running a short distance further other blasts or danger-signals were given and the speed of the train was slackened, but as Campbell did not leave the track he was struck by the engine, knocked down, and the front wheel of the engine ran upon or over him. At that time the engine had come to a full stop, when the engine was backed off, releasing him. Campbell walked between the rails of the main track with his head down, only stopping for a moment at one time to speak with a workman who was engaged in ballasting the trakc. He did not look backward to see whether a train was following, and, although the day was clear, it appears that he did not hear the warning signals that were given. He was 65 years of age, in good health, and appeared to be in the full possession of his faculties. He lived in plain view of the railroad-track, and as he often passed along or over the road and saw trains frequently pass over the same, he was necessarily familiar with the situation and its surroundings. A few feet away and parallel with the railroad was a highway upon which he could have walked with safety to his destination.

It is clear from the testimony that he was a conscious trespasser, and that, under the circumstances, his conduct was recklessly negligent. A railroad-track, between crossings, belongs exclusively to the railroad company, and it is well settled that all persons who venture along the same do so subject to the risks incident to so hazardous an undertaking, and, if injured by a train of the company, there is no liability unless the injury was willfully and wantonly inflicted. In Mason v. Railway Co., 27 Kan. 83, it was said that--

"A railway company has exclusive right to occupy, use and enjoy its railway-tracks, . . . and such exclusive right is absolutely necessary to enable it to properly perform its duties, and any person walking upon a railroad-track . . . without the consent of the company is held in law to be there wrongfully, and therefore to be a trespasser; and in case of an injury happening to such person while so trespassing upon it, from the movement or operation of the cars of the company over it, he is without remedy, unless it be proved by affirmative evidence that the injuries resulted from negligence so gross as to amount to wantonness."

See, also, Railway Co. v. Whipple, 39 Kan. 531; Tennis v. Railway Co., 45 id. 503; Railroad Co. v. Todd, 54 id. 558.

We are unable to find testimony sustaining the view that Campbell's death was due to the intentional or wanton negligence of the engineer. It is contended that Campbell was seen 500 feet ahead of the engine, and therefore the engineer should have stopped the train before reaching him. An engineer, however, is not bound to...