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• Decision Date: 08 July 1892
• Court: Kansas Supreme Court
• Parties: THE CHICAGO, KANSAS & WESTERN RAILROAD COMPANY v. A. C. FISHER, as Administrator of the estate of George Fisher, deceased

30 P. 462

49 Kan. 460

THE CHICAGO, KANSAS & WESTERN RAILROAD COMPANY v. A. C. FISHER, as Administrator of the estate of George Fisher, deceased

Supreme Court of Kansas

July 8, 1892

Error from Shawnee District Court.

ACTION by Fisher against the Railroad Company to recover damages for bodily injuries. Judgment for plaintiff, July 8, 1889. The defendant brings the case to this court. The opinion states the material facts.

Judgment reversed.

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

1. Under the undisputed facts and the special findings of the jury, the general verdict cannot stand. They show that the plaintiff was guilty of contributory negligence, and judgment should be rendered in favor of the defendant upon the special findings of the jury.

A person about to cross a railroad track is required to make a vigilant use of both his sense of hearing and of sight. This is put upon him as a duty, as a matter of law, and failing in this, he is held, as a matter of law, to be guilty of contributory negligence, and cannot recover, even though the defendant may have been negligent. In Beach on Contributory Negligence, § 63, it is said:

"The requirements of the law, moreover, proceed beyond the featureless generality that one must do his duty in this respect, or must exercise ordinary care under the circumstances. The law defines precisely what the term 'ordinary care under the circumstances' shall mean in these cases. In the progress of the law in this behalf, the question of care at railway crossings, as affecting the traveler, is no longer, as a rule, a question for the jury. The quantum of care is exactly prescribed as a matter of law. In attempting to cross, the traveler must listen for signals notice signs put up as warnings, and look attentively up and down the track. A multitude of decisions of all the courts enforce this reasonable rule."

See also, Durbin v. Oregon Rly. & Nav. Co., 17 P. 7; A. T & S. F. Rld. Co. v. Townsend, 39 Kan. 119; McCrory v. C. M. & St. P. Rly. Co., 31 F. 531. The case of Heaney v. L. I. Rld. Co., 19 N.E. 422, decided by the New York court of appeals, is to the same effect. In that case the deceased was held guilty of contributory negligence in crossing the railroad track without waiting for the smoke caused by a passing engine to clear away. Debbins v. Old Colony Rld. Co., 47 Am. & Eng. Rld. Cases, 531. See, also, Fleming v. W. P. Rld. Co., 49 Cal. 253; Butterfield v. Western Rld. Co., 10 Allen, 532.

These cases are directly in point; but the rule is also illustrated in cases where there are a number of parallel tracks, with trains passing up and down; and where the view of the traveler is obstructed by a passing train upon the first track, it is held that he cannot go immediately upon the second track after the train upon the first track has passed, without looking up and down the second track to see if there is an approaching train. In other words, it is the duty of the traveler to wait until this temporary obstruction has passed, and until he can get a clear view of the track which he is about to cross. See, also, Fletcher v. Fitchburg Rld. Co., 21 N.E. 302; Allerton v. B. & M. Rly. Co., 34 Am. & Eng. Rld. Cases, 563; Scott v. Pennsylvania Rld. Co., 29 N.E. 289; Marty v. C. St. P. M. & O. Rly. Co., 35 N.W. 670; Blight v. Camden & A. Rld. Co., 21 A. 995. In Pennsylvania Rld. Co. v. Bell, 15 A. 561, it is said:

"A person who was about to cross a railroad track and was struck by a passing engine could not recover, although he testified that before stepping on the track he stopped and looked and listened, but neither saw nor heard an approaching train. . . . It is in vain for a man to say that he looked and listened, if, in despite of what his eyes and ears must have told him, he walked directly in front of a moving locomotive."

See, also, Skelton v. L. & N. W. Rly. Co., L. R., 2 C. P. 631; Hamm v. N. Y. C. Rld. Co., 50 N.Y.S. 78; Pence v. C. R. I. & P. Rld. Co., 63 Iowa 746; Holland v. C. M. & St. P. Rly. Co., 18 F. 243; Stubley v. L. & N. W. Rld. Co., L. R., 1 Exch. 20; Moore v. Philadelphia &c. Rld. Co., 108 Pa. 349; Mynning v. D. L. & N. Rld. Co., 31 N.W. 147; Tucker v. N. Y. C. & H. R. Rld. Co., 26 N.E. 916; Woodward v. N. Y. L. E. & W. Rld. Co., 13 id. 424; Kwiotkowski v. C. & G. T. Rly. Co., 38 N.W. 463; Merkle v. N. Y. L. E. & W. Rld. Co., 49 N.J.L. 473; Wakelin v. L. & S.W. Rld. Co., 29 Am. & Eng. Rld. Cases, note, p. 434.

Further citation of authorities is unnecessary. This case falls within that line of decisions in which it is held by the courts that, where the traveler approaching a railroad track at a crossing has his vision of the track temporarily obstructed, so that he cannot see an approaching train in time to avoid danger, it is his duty, as a matter of law, to wait until this temporary obstruction passes by and until he can get an unobstructed view. This, according to his own testimony and the findings of the jury, the plaintiff failed to do.

2. There was error in giving and refusing to give certain instructions.

An "ordinary" man is not necessarily a reasonably prudent man. Austin & N. W. Rly. Co. v. Beatty, 11 S.W. 858.

The rule is well established, that where the instructions are inconsistent, and the one part correct and the other erroneous, they are all bad, because it is impossible to know which instruction the jury followed. P. F. W. &c. Rly. Co. v. Bingham, 29 Ohio St. 374.

The court also left it to the jury to determine whether the defendant was negligent in the failure to have a flagman at the crossing to warn travelers. No ordinance of the city required this duty of the railroad company and no statute requires it, and the failure to have a flagman at this crossing would not be negligence, nor would it be a fact from which negligence could be inferred. The rule which is now established by the weight of authority is, that the failure to have a flagman is not negligence, but the only question is, whether, in view of the presence or absence of this precaution, the train was moved with prudence or negligence. There is a vast distinction between these two things, and this is a question which should have been clearly presented to the jury. See Heddles v. C. & N. W. Rly. Co., 42 N.W. 237, 242, in which a number of cases are cited, and an early Wisconsin case is overruled. Also, Crawford v. D. L. & W. Rly. Co., 55 N.Y., Super. Ct. 50. The same view is adopted by this court in K. P. Rly. Co. v. Richardson, 25 Kan. 409.

The court also erred in the same instruction in charging the jury that "If the plaintiff was only guilty of slight negligence, and you should find the defendant was guilty of gross negligence, that in such case the plaintiff would be entitled to recover." This instruction was misleading; for if the plaintiff was guilty of any negligence which contributed to bringing about the injury upon himself, in failing to take any reasonable precaution with respect to making this crossing, he would be guilty of such proximate negligence, and such negligence would not be slight, but would be direct, and such as would contribute to the accident. See Herne v. S. P. Rld. Co., 50 Cal. 482; A. T. & S. F. Rld. Co. v. Plunkett, 25 Kan. 189.

The twenty-ninth instruction should also have been given. It was to the effect that if the employe upon the train saw plaintiff approaching the track, at a point where he might or could have seen the approaching train, the employe had the right to presume that the person so approaching the track in view of the train would stop, and not attempt to cross over in front of the same. Moore v. Railroad Co., 108 Pa. 349; Ohio &c. Rld. Co. v. Walker, 32 Am. & Eng. Rld. Cases, 121.

3. There was error in the admission of evidence. In cross-examining Mr. Robb, a witness for the defendant, the plaintiff asked certain questions. No question was asked of this witness on the direct examination by the defendant concerning the whistle, and the rule is, that the cross-examination of a witness is limited to the matters brought out in the examination in chief. Lawder v. Henderson, 36 Kan. 754. In any event, such a question is an improper one, because it is not for the witness to say what would be a safer method in this case. It is not matter of opinion nor of expert testimony. City of Parsons v. Lindsay, 26 Kan. 431; K. P. Rly. Co. v. Peavey, 29 id. 178, 179; I. & S. C. Co. v. Tolson, 139 U.S. 559, 560; Sappenfield v. Main Street &c. Rly. Co., 27 P. 590.

4. The district court of Shawnee county did not have jurisdiction of this action or over the defendant.

Paragraph 4129, Gen. Stat. of 1889, prescribes where an action of the kind designated against a railroad company may be brought, and the venue must be in some such county. It is exclusive of the courts of all other counties. Where a statute prescribes the courts which may have jurisdiction over a certain class of actions, it necessarily excludes jurisdiction in other courts of the state, and the action must be brought in the county in which the venue may be laid. L. R. & F. S. Rld. Co. v. Clifton, 31 Ark. 205, 206; E. & C. Rld. Co. v. Epperson, 59 Ind. 438; I. & C. Rld. Co. v. Renner, 17 id. 135; I & C. Rld. Co. v. Wilsey, 20 id. 229; Rev. Stat. of Ind., 1881, § 4026.

D. C. Tillotson, and J. G. Waters, for defendant in error:

After summarizing the evidence in the case, counsel for defendant in error say:

Fisher was out in this storm; he believed that it was increasing; he desired to get to his place of business before it did increase; he desired, as men would naturally desire, to get out of the storm, and the only way he could do so was by continuing on his journey to his place of business. Any mistake of judgment he may have made is not to be charged to him...