Edgerton v. O'Neil

• Decision Date: 01 June 1896
• Docket Number: 73
• Citation: 4 Kan.App. 73,46 P. 206
• Parties: D. M. EDGERTON, as Receiver of the Inter-state Consolidated Rapid Transit Railway Company, v. MICHAEL O'NEIL
• Court: Kansas Court of Appeals

46 P. 206

D. M. EDGERTON, as Receiver of the Inter-state Consolidated Rapid Transit Railway Company, v. MICHAEL O'NEIL

4 Kan.App. 73

No. 73

Court of Appeals of Kansas, Northern Department, Eastern Division

June 1, 1896

Error from court of common pleas, Wyandotte county; T. P. Anderson, Judge.

Opinion Filed September 9, 1896.

MEMORANDUM.--Error from Wyandotte court of common pleas; T P. ANDERSON, judge. Action by Michael O'Neil against D M. Edgerton as receiver of the Inter-state Consolidated Rapid Transit Railway Company to recover for personal injuries. Judgment for plaintiff. Defendant brings the case to this court. Affirmed. The opinion herein, filed September 9, 1896 states the material facts.

Judgment affirmed.

James Black, and Pratt, Ferry & Hagerman, for plaintiff in error.

C. C. Dail, and L. F. Bird, for defendant in error.

GILKESON P. J. All the Judges concurring.

OPINION

GILKESON, P. J.:

This was an action by Michael O'Neil, as plaintiff, against D. M. Edgerton, as receiver of the Inter-state Consolidated Rapid Transit Railway Company, for an injury to said O'Neil caused by a collision of one of the trains of the said railroad company with a wagon in which O'Neil was seated, and which at the time was attempting to cross the tracks of the street-railway. The accident complained of occurred at the street crossing at Ninth and Central avenue in Kansas City, Kan., upon what is known as the "River View" line, a branch of the mainline, and connecting therewith at River View station in Kansas City, Kan., and running through said city to Grand View station, its terminus, a distance of about two miles. This is a double-track road operated through said city, the trains of which are drawn by small dummy engines, the round trip being made in about 20 minutes. On the return trip, that is, from Grand View east to River View, the trains are run backward, not being turned at the western terminus, although switches are provided at that point for that purpose. About 100 yards west of the Ninth street crossing is a power-house, or car barn; between it and the place of collision, and about 200 feet distant therefrom, is a curve in the track. The avenue slopes with considerable grade from Tenth street to Ninth street. The train which caused the injury was at the time going east and was running backward. On the day of the accident the plaintiff, O'Neil, had been at work grading on Tenth street and Central avenue, and between 6 and 7 o'clock was returning from his work to his boarding-house, seated in the rear end of a two-horse wagon which was driven by one Frank Buchanan. They had proceeded down Central avenue, on the north side thereof, from Tenth street to Ninth street, and at Ninth street the driver attempted to cross the avenue. To do so, he was compelled to cross both tracks, and he had crossed the north track, and was in the act of crossing the south when the train was discovered close upon them, The team and wagon escaped, but O'Neil, jumping therefrom, was Struck by the train and injured. The jury made special findings of fact as follows:

"1. What was the speed of the train in question? Ans. About 20 miles per hour.

"2. At what distance could the approaching train have been seen by, at and before the actual crossing of the track? A. About 600 feet.

"3. Did or not the plaintiff look to see if a train was approaching at the time before crossing the track or right of way of the defendant, after leaving the road the plaintiff was on? A. Yes.

"4. If the plaintiff did look, at what distance from and before attempting to make the crossing? A. About 20 feet.

"5. At what distance was train from plaintiff when he first saw it, and could he then have escaped in time to have avoided the accident? A. About 45 or 50 feet; to the best of our knowledge, no.

"6. Did the plaintiff at any time, before crossing the track of the defendant, stop and either look or listen for any approaching train? A. Stopped, no. Looked, yes.

"7. What time of day did the accident occur? A. Between 6 and 7 P. M."

"11. Was plaintiff guilty of any negligence; if so, in what respect? A. No.

"12. Was, or not, Key, the conductor of the train in question, on the platform at the east end of the car which approached and came in collision with plaintiff? A. No.

"13. If on the platform of the car first approaching the crossing in question, was he or not on the lookout to avoid danger to plaintiff or others. A. Was not on platform.

"14. While on said platform, was he or not in a position to be in the immediate command of the brakes of said car? A. He was not on platform.

"15. On said platform, was he in a position to immediately command and use the bell-rope? A. He was not on platform.

"16. Did, or not, said Key, while on said platform, as soon as he discovered the plaintiff, or wagon and team, make use of the bell-rope and of the brakes as soon as he discovered that said team and wagon were about to cross the track? A. No."

These were all the special findings asked for by the defendant. Our attention is directed to six assignments of error, which we will consider in the order in which they are presented.

1. In overruling the defendant's demurrer to the testimony.

The allegations set out in the petition are that the defendant ran and operated its road in a grossly negligent and careless manner by running the trains thereon backward (that is, with engines or locomotives attached to the rear end of the train); that such backward running is unnecessary and highly dangerous to the public safety; that it neglected its duty by not keeping a careful watch on the front end of the train to avoid collisions; that the train in question was running at a high rate of speed, and it failed to sound the whistle, ring the bell, or give any other signal of approach of danger. Upon all of these allegations, testimony was introduced by the plaintiff which not only tended to prove, but we think established, each and every one of them. In fact, we might say, they stood, for the purposes of demurrer, uncontradicted, and the only fact that could be said to be disputed, or upon which there was any conflict of testimony, is as to the negligence of the plaintiff in attempting to cross the track. The rule is well established, that where there is a conflict of testimony reasonable men might differ about, then it becomes a question of fact for the jury. And upon this proposition the jury found that the plaintiff was not guilty of any negligence. And this finding is upheld by the testimony introduced by the plaintiff. And should we admit that the testimony upon this proposition was weak, we would not feel warranted in reversing the judgment in this case for that reason alone, when it is so conclusively shown that the employees of the defendant in charge of the train were so grossly negligent in its management, and where the most that could possibly be said of the plaintiff's conduct is that, if he was negligent at all, his negligence was very slight. The supreme court of this state has repeatedly held, that where the negligence of one party is gross and that of the other is slight, notwithstanding the slight negligence the party may recover. (Sawyer v. Sauer, 10 Kan. 466; Pacific Rld. Co. v. Houts, 12 id. 328; K. P. Rly. Co. v. Pointer, 14 id. 37; W. & W. Rld. Co. v. Davis, 37 id. 749.)

2. The admission of evidence of any other accident on this road than this one in question.

This needs but little comment. We have examined the record very carefully in this connection and fail to find any such testimony admitted over the objection of the defendant. In fact, we find that, upon Objection made, it was invariably sustained, or a motion to strike out was granted. It is true some testimony looking in this direction was admitted, but without objection. The question is raised for the first time in the brief of counsel, and we cannot, therefore, understand how the defendant was prejudiced thereby.

3. That the court erred in giving the following instruction:

"4. If you find that the plaintiff was on a public street, and at a public crossing, when he was struck by the defendant's train, he will not be considered a trespasser upon the rights of defendant by being on its track, the right of the plaintiff and defendant in said street being equal, and the defendant was bound to run its train with reference to the plaintiff and all other persons rightfully on said street, and it was bound to use ordinary care and diligence so as to avoid injuring him."

The petition alleges, and it is admitted in this action, that this line of road was operated upon the public highway and public street in the city of Kansas City, Kan., and that the accident occurred at a public crossing, This being true, the plaintiff cannot be considered such a trespasser as would relieve the railway company from exercising ordinary care and diligence toward him. In fact, he would not be a trespasser at all. The company would be bound to run its trains with reference to him, and to every other person who might be rightfully occupying the the street, Such persons would have the same right to be in the street as the railway company. If the plaintiff and the railway company each has the right to use said ground, then it was incumbent upon each alike to use ordinary care and diligence to prevent and avoid injuries. In commenting upon this proposition, Mr Justice VALENTINE, in K. P. Rly. Co. v. Pointer, 9 Kan. 620, 628, said: "In fact, in this case the legal right of the railway company and that of the public to use this ground as a street seems to be about equal. Both derive their right from a city ordinance." And, from the record in this case, it must be taken for granted that the public used this ground for a...