Hoopes v. The Atchison

• Decision Date: 09 December 1905
• Docket Number: 14,351
• Citation: 83 P. 987,72 Kan. 422
• Court: Kansas Supreme Court
• Parties: ELLA HOOPES v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY

83 P. 987

72 Kan. 422

ELLA HOOPES v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY

No. 14,351

Supreme Court of Kansas

December 9, 1905

Decided. July, 1905.

Error from Lyon district court; DENNIS MADDEN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

RAILROADS--Injury at Crossing--Contributory Negligence--Demurrer to Evidence. Deceased was killed at a railway-crossing in a public street. He had crossed two tracks and stood waiting for a freight-train passing west on the third track, directly in front of him, and, while looking at the passing freight-train, was struck by a train coming from the west upon the second track, close to which he was standing. The clear space between the passing trains was six feet. Except for the rays of the setting sun, his view of the incoming train was unobstructed for half a mile, if he had looked west. He was familiar with the tracks and surroundings. These facts appeared by plaintiff's evidence. A demurrer to the evidence was properly sustained. The rule in Railway Co v. Withers, 69 Kan. 620, 77 P. 542, 78 P. 451, governs, and the contributory negligence of deceased bars a recovery.

Kellogg & Madden, for plaintiff in error.

W. R. Smith, O. J. Wood, and Alfred A. Scott, for defendant in error.

PORTER J. All the Justices concurring.

OPINION

PORTER, J.

Plaintiff's husband was killed at a railway-crossing one block west of the passenger-station in the city of Emporia, where defendant company has three tracks extending east and west on Third avenue. The north track is for west-bound trains, the middle one for east-bound trains, and the south one for trains in either direction from the railway yards, which lie immediately west of the street-crossing. The middle track extends straight west for more than half a mile. In the evening Mr. Hoopes was returning from his work to his home, which was south of the tracks. He came to the crossing on the east side of the street, and started diagonally to the southwest corner, in order to get upon the west side of the street and across the tracks. After passing over the north and middle tracks his further passage was obstructed by a freight-train going west on the south track, directly in front of him. While waiting for the train to pass he stepped between the middle and south tracks, but stood very near to the south rail of the middle track, and was struck by the steam-chest of the engine of the fast mail going east on the middle track, hurled against the moving freight-train, and by it thrown back under the wheels of the fast mail and killed. The trial court sustained a demurrer to plaintiff's evidence, and plaintiff brings error upon the ground that the case should have gone to the jury.

The mail train was running at the rate of thirty miles an hour, without ringing the bell or sounding the whistle, and its negligence, as the case stood at the close of plaintiff's testimony, is conceded. The only question, however, is whether the contributory negligence of plaintiff's husband was such as to bar her right to recover. (U. P. Rly. Co. v. Adams, 33 Kan. 427, 6 P. 529; Dewald v. K. C. Ft. S. & G. Rld. Co., 44 Kan. 586, 24 P. 1101, and cases cited.) It appears that the clear space between the tracks was about nine feet, and between the passing trains six feet. Mr. Hicks, who was a witness, attempted to cross the tracks from the same direction and side of the street and at the same time as the plaintiff's husband, except that he stopped on the east side of the street, between the same tracks, waiting for the freight-train to pass, and when the fast mail came in from the west was standing about twenty feet east of Hoopes, but not so close to the middle track. He likewise failed to observe the approach of the train from the west until about the instant it struck deceased, and barely saved himself by stepping away from the middle track and nearer the passing freight. He testified that the sun was low in the west at the time, and that a person looking in that direction would be blinded by the sun and prevented from seeing the approaching train. Other witnesses testified that Mr. Hoopes walked a short distance west in the space between the tracks before the fast mail came in, but had turned and was looking at the passing freight when he was struck.

This case cannot be distinguished from that of Railway Co. v. Withers, 69 Kan. 620, 77 P. 542, 78 P. 451. In that case Withers, in company with another person, started along a sidewalk at a railway-crossing going to his home. As they came near one track they observed a train switching along another track, which obstructed their progress and caused them to halt on or near the first track. The court said:

"Much...