Chicago, B. & Q. Ry. Co. v. Laughlin

• Decision Date: 10 November 1906
• Parties: CHICAGO, B. & Q. RY. CO. v. LAUGHLIN.
• Court: Kansas Supreme Court

87 P. 749

74 Kan. 567

CHICAGO, B. & Q. RY. CO. v. LAUGHLIN.

Supreme Court of Kansas

November 10, 1906

Syllabus

When a jury in answer to special questions make certain general findings which are in the nature of conclusions, and which are contradicted by other special findings of fact in detail the general findings will be controlled by the special findings.

[Ed Note.-For cases in point, see Cent. Dig. vol. 46, Trial §§ 857-860.]

The special findings of the jury examined, and held to establish contributory negligence of a boy 13 years of age, of ordinary intelligence, who was injured in attempting to pass in front of a moving freight train which he saw approaching.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1029-1036.]

Error from District Court, Cloud County; Hugh Alexander, Judge.

Action by Ralph Laughlin by Hattie Laughlin, his next friend, against the Chicago, Burlington & Quincy Railway Company. Judgment for plaintiff. Defendant brings error. Reversed with directions.

Ralph Laughlin, an infant, was injured December 6, 1902, by being run over by a freight car, part of a train, consisting of an engine and two box cars, backing east on the tracks of defendant company in its railway yards near the station at Concordia. His left leg was cut off between the knee and ankle. He brought this action by his next friend, and recovered a judgment of $1,999 from which the railway company appeals.

At the time of the accident he was 13 years and 2 months old, and had been working as a messenger boy for the telegraph company for five weeks. His duties required him to cross these tracks frequently. He was a bright boy of ordinary intelligence. The tracks of defendant company lie east and west. The station is on the south side of the tracks, and a half block east of Washington street which runs north and south. The accident occurred at a point on the tracks about midway between the east side of Washington street and the station. The petition alleged that for years there had been a well-defined path across the tracks, leading from the sikewalk, which connected with the station platform, and running northwest to the sidewalk on the east side of Washington street, and that the public was accustomed to use it. Young Laughlin had passed over this path, going north, a few moments before the accident, with a message to deliver, and noticed the engine and cars switching west of Washington street. He saw them run east to near the east side of the street, then stop and run back again to the west. He delivered his message, got a reply requiring his immediate return to the telegraph office which was east and south of the station. On his return, and before he started across this diagonal path, he saw the train backing east, but supposed it would stop near the east side of the street because it had done so before. He was running slowly, and took the path across the tracks, going in a southeasterly direction. The engine and two cars were moving east at the rate of five or six miles an hour. He saw the cars moving east of Washington street and until they were within 10 feet of him, but thought they were slowing up and about to stop. He continued in his course, and was struck by the east end of the rear box car just as he stepped in front of it. He claimed that just as he stepped on the track the cars gave a lunge, and that but for this he would have gotten across ahead of them without injury. The bell of the engine was ringing all the time the cars were running. It was claimed that the railway company was negligent in failing to have a lookout on the rear car to warn persons of the approach of the train.

In answer to special questions submitted by plaintiff, the jury found that there was a well-defined pathway across the tracks of defendant company which the public used as claimed by plaintiff, and also made the following finding:

“ Q. 1. Did the plaintiff, Ralph Laughlin, exercise such reasonable care and prudence as might be expected from one of his years, knowledge, and experience, taking into consideration all of the circumstances and conditions in which he was placed immediately prior to, and at the time of, the injury? Ans. Yes.”

Sturges & Sturges, W. W. & W. F. Guthrie, and Boyle, Guthrie & Smith, for plaintiff in error.

Park B. Pulsifer and Dwight M. Smith, for defendant in error.

OPINION

PORTER, J.

The only negligence of which the jury found the company guilty was the failure to have a lookout on the rear of the train to warn persons of its approach. It is urged that the findings and evidence conclusively established that this negligence could not have been the proximate cause of the accident because it appears that the boy saw the cars approaching all the time, and had sufficient warning. However, conceding that the railway company was negligent,...