Hartman v. Atchison, T. & S.F.R. Co.

• Decision Date: 06 February 1915
• Docket Number: 19222
• Citation: 146 P. 335,94 Kan. 184
• Parties: HARTMAN v. ATCHISON, T. & S. F. RY. CO.
• Court: Kansas Supreme Court

146 P. 335

94 Kan. 184

HARTMAN v. ATCHISON, T. & S. F. RY. CO.

No. 19222

Supreme Court of Kansas

February 6, 1915

Syllabus

A collision between freight trains, caused by the negligence of the railway’s employés, resulted in the wreck of a number of cars loaded with cattle, from which a number of wild, dangerous Texas cattle escaped into the city of Harper Kan., where, while they were being gathered up and driven to the stockyards by persons employed by the railway for that purpose, one of the cattle, a cow, attacked and injured the plaintiff, who was walking on the sidewalk; this cow, after the wreck, before attacking the plaintiff, having made three separate attacks on one of the employés driving her. The railway is held liable for the damage done by this cow to the plaintiff.

Johnston C. J., and Porter and West, JJ., dissenting.

Appeal from District Court, Harper County.

Action by Alice Hartman against the Atchison, Topeka & Santa Fé Railway Company. From judgment for plaintiff defendant appeals. Affirmed.

W. R Smith, O. J. Wood, and A. A. Scott, all of Topeka, and T. A. Noftzger and J. D. Houston, both of Wichita, for appellant.

Donald Muir and Geo. E. McMahon, both of Anthony, for appellee.

OPINION

MARSHALL, J.

The plaintiff, Alice Hartman, recovered a judgment, in the district court of Harper county, Kan., against the railway company, for $800, damages for personal injuries, caused by being knocked down and run over by a cow which had escaped from a car broken open in a collision. The defendant appeals.

Through the negligence of the railway company, a collision between two freight trains occurred on the defendant’s road running east and west through the city of Harper. The east-bound train was a special, with 63 cars, loaded with cattle. As a result of the collision, several of these cattle cars were torn open, and a number of cattle escaped therefrom, into the city of Harper. The railway employed several residents of Harper to gather up the escaped cattle and put them in the stockyards. One of these men was O’Connell. While these employees were gathering up the cattle, one of them, a cow, charged the plaintiff, knocked her down and injured her. For this injury she brought this action.

A better understanding of how this cow acted, and of what those driving her did, can be had by quoting somewhat from appellant’s abstract.

Mr. O’Connell testified:

"* * * Mr. Elder, the station agent, employed me to get some of the cattle in. It was about half past 1. * * * I joined in to help get the cattle back. To get the cattle back we were out there until about 6:30, as near as I could judge. As we got the cattle in we put them in the stockyards. Put seven head in there. The rest got away in different directions while we were taking this bunch out there. One of the cows laid down and kind of sulked, and we went on with the balance and put them in the yards. Then I came back to see where the cow was. In the meantime she got up and started down the street. I followed her right up horseback, and she was going down the street, and I was not looking for anything to occur much. I was right after her horseback when this old lady was coming up the sidewalk. I was 2 or 3 rods behind the cow riding along, and just as the cow got even with this old lady she whirled and made a run right towards her, and run over her, and knocked her down. The cow had shown a little bad disposition before that. She made two or three dives at the horse and me like any cow will when they get riled up and go to driving them--get warmed up. Most any cow will. The cow was supposed to be Western bred. I could not say where she came from. When I first came down to the stockyards she charged at me, and I got out of the way. There were sidewalks along the street. I was 30 or 40 feet behind at the time she made this rush for the old lady. I saw Mrs. Hartman coming along. * * * I was on horseback. The cow was walking. I was not expecting her to run. I do not know if the fact that she had made some passes at me and my horse had anything to do with my staying so far behind. I was not particularly afraid of her at that time. I did not want to crowd her on. I was waiting for help. I felt at this time that I should have had more help with the cow. At the time I first saw Mrs. Hartman she was walking on the sidewalk. * * * When the cow came up near to Mrs. Hartman she turned and ran at her, tore down the street, and run for her and struck her; threw Mrs. Hartman down and run over her. The cow went on through the fence, over the fence; turned a somersault right over the fence; had some speed up. She had been walking quietly along just prior to that time. I was as close as 20 feet to her, anyhow. After she turned before she struck Mrs. Hartman she had to travel 25 or 30 feet, or about halfway across the street. There was a fence right against the sidewalk. The cow struck Mrs. Hartman and ran over her and turned a complete somersault over the fence. It was done so quickly I could not tell. I knew she went over it--turned right over. I thought she was going to get up and make for the old lady, and I run right across and told her to make for the house. Then I drove my horse right across the sidewalk, and the cow got over the fence and turned and went down the street. I judge it was about 5 o’clock. I did not assist Mrs. Hartman at all. Went after the cow. The cow went down the street, and there were some children on the street. I went on down to get them out of the road. Hollered to the children to get out of the road, and saw Mrs. Hartman get up and go into the house, * * * and I was trying to follow this cow up and do all I could. The cow went down on a vacant and laid down. I did not get the cow back up to the stockyards. I was running a livery barn, and about 6:30 I had to go back to the barn. The other boys came along with a rope, and had better saddle horses than I had to take hold of her. * * * Before she ran over the plaintiff I had been driving her with the other cattle. When she dropped from the bunch she laid down beside the road. She was pretty scrappy before that; fought the horse and fought us. A man named Jack Munger and I were driving. After she quieted down she acted like any other cow would under the circumstances. We run them a good deal and got them warmed up, and they got mad. * * * This cow showed fight before she laid down. That was before she struck Mrs. Hartman."

Sam Row testified:

"The cattle liberated were Western cattle--long-horn cattle. I would call them wild and scrappy cattle. They were wild and savage."

The jury returned a general verdict in favor of the plaintiff. Several special questions were submitted to the jury and answers returned, the material ones of which are as follows:

"(1) Q. What, if any, negligence was the defendant guilty of that caused the injury to the plaintiff, if any injury the plaintiff received?

Ans. Neglect to perform their duty in failing to turn switch, which caused wreck and liberated cattle."

"(6) Q. If the defendant’s negligence caused the injuries complained of, give the name or position of the employee or employees guilty of such negligence.

Ans. Conductor."

"(8) Q. Had the animal that ran over the plaintiff been passing quietly down the highway in front of O’Connell for several blocks, just prior to the time plaintiff was run over by said animal?

Ans. No.

(9) Q. Was said animal passing down the highway quietly and in an ordinary walk, just prior to the time it ran over the plaintiff?

Ans. Yes.

(10) Q. After the animal in question ran over the plaintiff, was it driven for some distance by O’Connell in an ordinary walk to a lot where it lay down?

Ans. Yes.

(11) Q. Were the cattle that escaped what is known as white-faced cattle (at least in the main)?

Ans. Yes.

(12) Q. If the cow that ran over the plaintiff was wild and dangerous, when did any representative of the defendant learn that fact?

Ans. When said cow charged O’Connell.

(13) Q. Who, if any one, learned said cow was dangerous?

Ans. O’Connell and Sam Noel.

(14) Q. Did the animal that ran over the plaintiff belong to the species known as white-faced cattle?

Ans. No."

"(17) Q. What was the direct and immediate cause of the cow running over the plaintiff?

Ans. Because of a vicious disposition.

(18) Q. How long was it from the time the cattle escaped until the plaintiff was run over by the cow in question?

Ans. About four hours.

(19) Q. Are what is known as white-faced cattle wild, unruly, or dangerous as a class?

Ans. Yes.

(20) Q. Were these cattle what is known generally as the wild, dangerous Texas cattle?

Ans. Yes."

A demurrer to the evidence was overruled, and a motion for judgment in favor of the defendant, on the special findings, was denied.

The railway contends that the negligence of its employees in causing the wreck was not the proximate cause of the injury to the plaintiff; that there was an intervening cause of the injury; that this intervening cause was the act of the cow in charging the plaintiff; that the company had no knowledge of the cow’s vicious disposition for a sufficient length of time in advance of the cow’s attack upon plaintiff to have prevented the same by the exercise of ordinary care; that the company’s employees did their best to drive the cow to the stockyards; that there was no contractual relation between plaintiff and defendant, and for that reason the defendant could not be guilty of negligence toward the plaintiff; and that for these reasons the company is not liable to the plaintiff for the injuries sustained.

Was the negligence in causing the wreck the proximate cause of the injury to the plaintiff, as that expression is used in actions for damages for personal injury? The following ...