Gilbert v. The Missouri Pacific Railway Company

• Decision Date: 07 March 1914
• Docket Number: 18,555
• Citation: 91 Kan. 711,139 P. 380
• Parties: IRA A. GILBERT, Appellee, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Supreme Court

139 P. 380

91 Kan. 711

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

No. 18,555

Supreme Court of Kansas

March 7, 1914

Decided January, 1914.

Appeal from Nemaha district court; WILLIAM I. STUART, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. PERSONAL INJURIES--Driving Across Railroad Track--Contributory Negligence--Wantonness of Defendant. The decision in the case of Railway Co. v. Baker, 79 Kan. 183, 98 P. 804, relating to the subject of wantonness in speeding a railway train along or across a city street, approved and followed.

2. SAME--Wantonness Not Proven. The evidence and special findings of fact returned by the jury considered and held not to meet the requirements of the law essential to constitute wantonness.

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

BURCH, J.

The question in this case is whether or not the plaintiff, who was negligent in driving upon a railway crossing in front of one of the defendant's moving trains, should recover damages on the ground that the defendant was guilty of recklessness and wantonness in injuring him.

The collision occurred on Fourth street in the city of Centralia, a city of the third class. The street extends north and south. Three of the defendant's tracks cross it from east to west near the center of the business section of the town. The street is the principal thoroughfare of the town, many crossings of the tracks are made daily, and a city ordinance limits the speed of trains to eight miles per hour. Coming from the south the first track to be encountered is a sidetrack. Forty-one feet north of it is the main track. The plaintiff approached from the south while the train approached from the east on the main track. The plaintiff was driving a team of horses hitched to a farm wagon. He stood up in his wagon, drove in a walk across the sidetrack, across the space intervening between that track and the main track, and then drove upon the main track without looking for or giving heed to the approaching train, which could have been seen for a distance of one thousand or twelve hundred feet. It was about three o'clock in the afternoon of a bright, clear day in January. The plaintiff was in full possession of all his faculties, frequently passed over the track and was familiar with it. His team moved at the rate of about three miles per hour and did not become frightened at the approaching train. The train, which was a work train consisting of an engine and five cars, was moving at the rate of thirty miles per hour. The whistle was sounded fifteen hundred feet east of Fourth street, and the bell was ringing at the time the engine approached the crossing, when near it. The engineer and fireman were in their proper positions on the engine, the fireman being on the south side. When the fireman discovered the plaintiff he was crossing the sidetrack. The fireman supposed the plaintiff would act according to the habit of people generally, approach the main track and stop, and consequently did not notify the engineer at once. When the fireman saw that the plaintiff was attempting to cross in front of the train he notified the engineer, who immediately applied the air brakes and sounded the alarm whistle, but it was too late to avoid the collision.

At the trial the court gave the jury the following instructions, which were accepted by the plaintiff and which are the law of the case:

"Before the plaintiff can recover in this case, you must not only find that the defendants' servants and employees were guilty of ordinary negligence, but you must find that such negligence and want of care was reckless and wanton. The undisputed evidence in this case clearly shows that the plaintiff was guilty of negligence at the time he approached the crossing in question by not looking to the east to see whether or not a train was approaching from that direction. And being so negligent he can not recover in this case on account of the mere want of ordinary care and prudence on the part of the defendant company's servants and employees. But even though the plaintiff was guilty of such negligence, yet if you believe from the evidence that the operation of the train in question by the servants and employees of the defendant company, at the time of the accident, was reckless and wanton, then the defendant company can not avail itself of the defense of negligence on the part of plaintiff, and plaintiff would be entitled to recover.

"The words 'reckless and wanton' as herein used, mean the conscious failure of one charged with a duty to exercise due care and diligence to prevent an injury, after the discovery of the peril, or under circumstances where he is charged with the knowledge of such peril, and being conscious of the inevitable or probable result of such failure still acts without due care and diligence. And it is immaterial whether the failure to discharge the duty in the exercise of care and diligence springs from an act of commission or omission. The duty referred to, the disregard of which amounts to wantonness, is that which arises only when the person charged with dereliction has knowledge of the danger, or of the facts which imputed that knowledge to him. One who is properly charged with recklessness or wantonness is not simply more careless than one who is only guilty of negligence; his conduct must be such as to put him in the class with the willful doer of wrong. The only respect in which his attitude is less blameworthy than that of the intentional wrongdoer is that instead of affirmatively wishing to injure another he is merely willing to do so, or indifferent whether he does so or not.

"The trainmen in charge of said engine had the right to assume and rely upon the fact that plaintiff was in the possession of all of his faculties, and that he, having an unobstructed view of said approaching train, knew of said approaching train, and that he had a team that was safe and that he would stop said team and would not attempt to cross over said track in front of said train, or drive so close to said track that the train passing along would collide with said team, and if you find from the evidence that said trainmen exercised reasonable and ordinary care to avert said accident after it became apparent to them, or would have been apparent to a reasonably prudent man that plaintiff was about to go upon said railroad track in front of said train, then you would not be justified in finding them or either of them guilty of wanton negligence, and this is the law, even though you should find that said train was being operated at a greater rate of speed than provided for in the ordinance of the city of Centralia, and without causing the bell to be rung."

The jury returned, among others, the following special findings of fact:

"3. What distance east of plaintiff was the fireman when he first discovered the plaintiff or his team? A. 550 feet.

"Q 25. After plaintiff had driven over said house track, and his wagon had cleared the same, how far were the heads of the horses from the main...