Clark v. Missouri Pac. Ry. Co.

• Decision Date: 04 June 1886
• Parties: JAMES B. CLARK v. THE MISSOURI PACIFIC RAILWAY COMPANY
• Court: Kansas Supreme Court

11 P. 134

35 Kan. 350

JAMES B. CLARK v. THE MISSOURI PACIFIC RAILWAY COMPANY

Supreme Court of Kansas

June 4, 1886

Error from Miami District Court.

ACTION by Clark against The Railway Company, to recover damages for bodily injuries. Trial at the May Term, 1885, when the jury found for the plaintiff, and assessed his damages at $ 1. Upon questions presented at the request of plaintiff, the jury answered as follows:

"1. Did the employes of defendant that were operating the train at the time plaintiff received the injuries complained of blow, or cause to be blown, the whistle on the engine three times, at least 80 rods before crossing the highway on the outside of the city limits of the city of Paola, Miami county, Kansas? A. No.

"2. Did the plaintiff see or know of the approach of the train of defendant in time to have avoided the injury? A. No.

"3. Did the defendant, the Missouri Pacific Railway Company, or any of its employes, blow the whistle three times, at least 80 rods before crossing the highway on the outside limits of the city of Paola, Miami county, Kansas? A. No.

"4. Was the defendant, the Missouri Pacific Railway Company guilty of negligence which was the immediate cause of the injury to plaintiff? A. We cannot answer.

"5. (Not given.)

"6. How far is the crossing where the collision occurred, from the place where the highway on the outside limits of Peery's addition to the city of Paola on the east crosses the railway track of defendant? A. 28 rods, 11 feet.

"7. Was the plaintiff, Clark, warned that the train was approaching in time to have stopped his team and avoided the collision? A. We cannot answer.

"8. Did the defendant's employes managing the train at the time the collision occurred, ring or cause to be rung the bell on the engine at any time after reaching the city limits and before colliding with plaintiff's wagon? A. We cannot answer.

"9. Did the plaintiff, after coming in sight of defendant's track, at any time before arriving at the track, look in the direction from which the train was coming? A. We cannot answer.

"10. Was plaintiff intoxicated at the time the collision occurred on said 15th day of April, 1882? A. We cannot answer."

Special findings upon questions presented at the request of the defendant:"

1. Did the plaintiff, when driving on Locust street and approaching the railroad track, look before he drove on the track to see if a train was approaching on the track from the east? A. We cannot answer.

"2. Did the plaintiff, when traveling along Locust street and near the railroad track, listen to hear if a train of cars was approaching on the road from the east, before he drove on the track? A. We cannot answer.

"3. Could the plaintiff have discovered the approach of the train on the railroad of the defendant, for the distance of seven hundred feet when he got within one hundred feet of the track, if he had looked in the direction from which the train was coming? A. We cannot answer.

"4. Could plaintiff have seen the train approaching on the railway for the distance of one-half mile when he was fifty feet from the track? A. No.

"5. Could the plaintiff have heard the noise of the train eighty rods before it reached the crossing of Locust street, if he had listened for its approach? A. We cannot answer.

"6. Did the train make a loud noise as it was approaching the crossing on Locust street? A. We cannot answer.

"7. Was the weather clear and calm at the time of the collision between the engine and plaintiff's wagon? A. Yes.

"8. Was there anything to prevent the plaintiff from seeing the train coming on the track before he drove his horses on the railroad, if he had looked in the direction from which it was coming? A. No.

"9. Could plaintiff have seen the train coming on the track a sufficient length of time to have avoided the collision if he had looked in the direction from which the train was coming? A. Yes.

"10. Could plaintiff have heard the noise of the train a sufficient time to have averted the collision if he had listened? A. We cannot answer.

"11. Was the plaintiff guilty of negligence in driving upon the railroad track without either looking or listening for an approaching train? A. We cannot answer.

"12. Did plaintiff exercise ordinary care and prudence in driving his wagon and team on the railroad track? A. We cannot answer.

"13. Did the plaintiff at any time after he got within two hundred feet of the railroad track, and before he drove his wagon upon the track, look to see if a train was approaching on the railroad from the east? A. No."

Upon the special findings, the court rendered judgment for the defendant. The plaintiff brings the case here.

Judgment affirmed.

Stevens & Stevens, and Brayman & Sheldon, for plaintiff in error.

W. A. Johnson, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.

This was an action brought by James B. Clark against the Missouri Pacific Railway Company, to recover for injuries alleged to have been caused through the negligence of the railway company. The case was tried before the court and a jury, and the jury found a general verdict in favor of the plaintiff and against the defendant, and assessed the plaintiff's damages at one dollar; and also made a large number of special findings, upon which special findings the court rendered judgment in favor of the defendant and against the plaintiff for costs, notwithstanding the general verdict. Of this judgment the plaintiff complains, and brings the case to this court for review.

It appears that on April 15, 1882, at about 6 o'clock in the afternoon, while the plaintiff was crossing the defendant's railway track, going northward on Locust street, in the city of Paola, Kansas, the hind end of his wagon was struck by one of the defendant's engines, which was attached to and was drawing a westward-bound railway freight train, and that this collision caused the injuries complained of.

There are two principal questions involved in this case: First, was the defendant guilty of any negligence causing the injuries complained of? Second, was the plaintiff guilty of any contributory negligence? Both of these questions we think have already been virtually decided by this court in the cases of Mo. Pac. Rly. Co. v. Pierce, 33 Kan. 61, 5 P. 378; and U. P. Rly. Co. v. Adams, 33 id. 427.

The only negligence charged against the railway company in this case is, that it failed to sound the engine whistle three times, at least eighty rods east of a certain point where the railway crosses a public road or street at the east edge of the city of Paola, and claimed to be outside of the city limits. The statute does not require that the whistle shall be sounded in a city or village. (Comp. Laws of 1879, ch. 23, § 60.) But it is claimed that the whistle should have been sounded at least eighty rods east of this road or street, for the reason that it was not within the city limits. This road or street was about four hundred and seventy-three feet of Locust street and of the place where the accident occurred. Now, assuming that the aforesaid road or street was not in the city, and that the whistle was not sounded at least eighty rods east thereof, still these facts, if they are facts, do not necessarily show negligence on the part of the defendant affecting this case. This exact question has already been decided by this court, in the case of Mo. Pac. Rly. Co. v. Pierce, first above referred to. The accident in that case happened at the very same place where the accident in this case happened, and in that case it was held as follows:

"The failure of a railroad company to sound the locomotive whistle three times, at least eighty rods from the point where the railroad crosses any public road or street which lies outside of a city or village, is negligence; but such negligence is not attributable to the railway company in a case where the injury complained of was done at a...