Gilbert v. The Missouri Pacific Railway Company

• Decision Date: 09 May 1914
• Docket Number: 18,555
• Citation: 92 Kan. 281,140 P. 883
• Parties: IRA GILBERT, Appellee, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Supreme Court

140 P. 883

92 Kan. 281

IRA GILBERT, Appellee, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant

No. 18,555

Supreme Court of Kansas

May 9, 1914

Decided January, 1914.

Appeal from Nemaha district court; WILLIAM I. STUART, judge. Opinion denying a rehearing filed May 9, 1914. (For original opinion of reversal see 91 Kan. 711, 139 P. 380.)

Petition denied.

W. P Waggener, J. M. Challis, both of Atchison, and R. M. Emery jr., of Seneca, for the appellant.

R. F. Hayden, and George P. Hayden, both of Topeka, for the appellee.

OPINION

OPINION DENYING A REHEARING.

BURCH J.

In a petition for a rehearing it is said broadly that the facts set out in the original opinion upon which the decision is based (Gilbert v. Railway Co., 91 Kan. 711, 139 P. 380) are not the facts shown by the record. The decision was based on the special findings of the jury (original opinion, page 716), which could not well be falsified. But passing by this fundamental defect in the petition for a rehearing the following is a sample specification of the plaintiff's general charge.

"In the opinion, the Court said:

"'The fireman was at his post, he did see the plaintiff, he did notify the engineer, the whistle was sounded, the bell was rung, the emergency brake was applied, and everything was done which could be done to avert disaster.'

"Are these the natural conclusions to be gathered from the evidence. True, the fireman was at his post and he testified that he notified the engineer; but was the whistle sounded, were the above measures taken? All of appellee's [plaintiff's] witnesses testified that they were not and the jury so found in answer to special question 52."

The ill-considered extravagance of this statement may be judged when it is pointed out that the plaintiff's own witness, Haskett, testified that he heard the engine whistle, then the crash of the collision, and then saw the train go by, and that the jury found specially in finding 45, not printed in the original opinion, that the bell was rung and ringing at the time the engine approached the crossing where the collision occurred, when near the crossing.

The plaintiff produced five witnesses who gave negative testimony that they "did not recollect" hearing the bell or whistle, or "did not hear" the bell or whistle just before the collision occurred. Two of these witnesses confessed to defective hearing. Another said he was giving no attention to the train. Another stated that the bell might have been ringing, but he did not recollect it. The fifth was not cross-examined. The positive testimony of a large number of witnesses who could and did hear, including Mr. Haskett, produced by the plaintiff, was that the alarm whistle was sounded before the collision occurred. Several of these witnesses testified to the ringing of the bell. Some of them described the peculiar shrill noise of the whistle. Mr. Haskett called it a screech. The jury, following an instruction of the court on the subject, accepted the positive testimony, as is shown beyond dispute by the finding relating to the ringing of the bell. They were not separately interrogated concerning the sounding of the whistle, but the whole matter was covered by finding 56, which was framed upon the testimony of the engineer, corroborated by the positive testimony referred to. The engineer said that when he received the alarm from the fireman that a team was about to attempt the crossing, the bell was ringing, that he applied the air immediately, grabbed the whistle and gave two or three toots and made all the alarm he could in the time he had, and that there was nothing he could have done which he did not do to prevent the accident. The jury found accordingly and the opinion stated the facts accordingly.

Finding 52 can not be perverted into a finding that no whistle was sounded at all after the whistle given 1500 feet east of Fourth street. That finding merely states what ought to have been done to avoid the accident, that is, the whistle should have been sounded when it appeared that the plaintiff was apparently going to attempt to cross in front of the engine. It must be read with finding 42, on the same subject, that the fireman, who was observing the plaintiff, should have called the engineer's attention sooner to give the alarm by whistling when the fireman discovered the plaintiff was about to cross the track in front of the train. Finding 42 is conclusive that the fireman did call the engineer's attention to give the alarm by whistling--but not soon enough to prevent the collision. Finding 56 summarizes what followed....