Dunlap v. The Chicago

• Decision Date: 11 May 1912
• Docket Number: 17,659
• Citation: 87 Kan. 197,123 P. 754
• Court: Kansas Supreme Court
• Parties: E. P. DUNLAP, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

123 P. 754

87 Kan. 197

E. P. DUNLAP, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

No. 17,659

Supreme Court of Kansas

May 11, 1912

Decided January, 1912.

Appeal from Norton district court.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

NEGLIGENCE--Injury to Stock--Last Clear Chance--Concurrent Negligence. The doctrine of the last clear chance does not apply so long as the two parties are concurrently negligent, for then the law will not compare or apportion the negligence. An owner of cattle having negligently permitted them to go upon a railway crossing, from which he was using due care to remove them can not hold the railway company liable for failure of its engineer to discover the cattle upon the crossing, but only for failure to use proper care after actually seeing them there.

M. A. Low, and Paul E. Walker, for the appellant.

L. H. Wilder, for the appellee.

OPINION

WEST, J.:

The plaintiff drove seventy-eight head of cattle along the north-and-south highway which crosses the defendant's track about one hundred feet south of the Burlington crossing, both tracks being slightly above grade, causing a corresponding depression between them. The defendant's track from the crossing runs straight west about one-half mile. The plaintiff, with two hands, was coming south with the cattle, and when about twenty rods north of the Burlington crossing he drove ahead and stopped the cattle to permit one of the defendant's trains to pass. Afterward he testified that he looked and listened, but neither saw nor heard any other train, and permitted his cattle to string out along the road and over the two crossings. When he came upon the Burlington grade he saw an engine coming through the cut on the defendant's road, at which time there were fifteen to twenty of the cattle across the defendant's track. He rode to the defendant's crossing, dismounted and attempted to separate the cattle and clear the crossing, some of them being past twenty-five to thirty yards, about twenty-five being over the one and nearly all the others being between the two crossings. The cut is about fifteen feet deep, and there is nothing to obstruct the view between it and the crossing. The engine struck the cattle, killing seven and injuring another. The plaintiff had lived near for six years, was familiar with the situation, and had passed along the road every few days. The petition charged that the locomotive, with a tender attached, came east at an extremely negligent and dangerous rate of speed; that the plaintiff saw the engine when about three-eighths of a mile distant, and at once tried to turn back his cattle, but was unable to do so before the locomotive, without abatement of speed and without warning except to sound the danger signal when but a few feet away, ran into them; that the men in charge of the locomotive had a clear and unobstructed view of the highway and cattle at all times after coming in sight thereof, and saw the cattle and was fully aware of the danger to them; that they actually stopped within eighty yards after striking them, and could easily have stopped before had they tried or desired to do so; that the injury was negligent, reckless and wanton, and that no attempt was made to stop or reduce the speed, but that the speed was constantly increased until after the cattle had been struck, and nothing was done to prevent the injury. The answer was a general denial and a plea of contributory negligence.

The jury found that the engineer first saw the cattle forty rods away, when there were two upon the track; that the engineer omitted to stop the engine; that the detailed negligence of the defendant was: "Being negligent--he ought to have stopped the engine." That eighty rods north of the crossing a train could have been observed, and that the plaintiff and his helpers were from five to ten rods north when they first saw the engine approaching; that after arriving at the crossing they did all they could in the way of getting the cattle off the track.

It will be observed that the allegations regarding the high speed and failure to give warnings are out of the case, the only negligence found by the jury being the failure to stop, the engineer having seen the cattle when forty rods from the crossing. The engineer testified that he saw two cattle on the crossing, and at once began to slow down, and when they left the track he saw no more, and released his brakes and went ahead; that as he got closer the whole bunch came upon the track, and he did everything he could to stop the engine even to reversing, and had nearly stopped before he struck the cattle, and was then going five or six miles an hour, having slowed down from thirty to thirty-five miles an hour; that he was on the south side of the engine and could not see to the left of the track,...