Jones v. The Atchison

• Decision Date: 06 May 1916
• Docket Number: 20,180
• Citation: 157 P. 399,98 Kan. 133
• Court: Kansas Supreme Court
• Parties: O. W. JONES, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

157 P. 399

98 Kan. 133

O. W. JONES, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

No. 20,180

Supreme Court of Kansas

May 6, 1916

Decided, January, 1916.

Appeal from Sedgwick district court, division No. 2; THORNTON W SARGENT, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

RAILROADS -- Freight Trains -- Limitation of Liability to Passengers -- Carrier Liable for Gross Negligence Only. It is within the power of the legislature to require carriers to carry passengers upon freight trains and to fix the measure of their responsibility for injuries suffered by passengers choosing that mode of travel, and under the provisions of chapter 190 of the Laws of 1909 (Gen. Stat. 1909, §§ 7123, 7124), one who takes passage on a freight train has no right to expect greater precautions for his safety than slight care nor to hold the carrier responsible for any lack of care less than gross negligence.

William R. Smith, Owen J. Wood, Alfred A. Scott, and Harlow Hurley, all of Topeka, for the appellant.

John W. Adams, Robert C. Foulston, and W. E. Pepperell, all of Wichita, for the appellee.

OPINION

JOHNSTON, C. J.

This is an appeal from a judgment awarded to O. W. Jones against the Atchison, Topeka & Santa Fe Railway Company as damages for personal injuries sustained by him while attempting to board one of the defendant's trains. The accident occurred on the morning of August 28, 1914, at the defendant's station in Mayfield, Kan. Jones went to the station with the intention of taking the local freight that arrived at that place about seven o'clock in the morning, and which had just pulled in when he reached the station. Finding the ticket office closed, the plaintiff went out to the train where the station agent and the conductor and brakeman of the train were unloading freight from one of the cars. The plaintiff testified that he asked the agent, who was working inside the car, for a ticket, but received no response, although the plaintiff was only six or seven feet away. He remained there until the railroad employees were through working in that car, when the agent started towards the ticket office, but he was called back by the conductor to take freight from another car. The plaintiff then took his valise back and placed it in the way car and started back toward the ticket office, but the train started to move and the plaintiff turned back towards the way car again. The train stopped for a moment, but soon after this it began moving from the station without any announcement or signal having been given, and the plaintiff said to the conductor and brakeman, who were standing near the train, that he had not been able to purchase a ticket yet, that his valise was on the way car, and that he desired to go out on that train. The conductor then said: "If you are going on this wagon you will have to get on." About twenty cars had passed them when this remark was made, and the train was said to be going about four miles an hour. The brakeman also told the plaintiff to get on, saying: "We are leaving town, train is going slow." Plaintiff followed the suggestion of the trainmen and attempted to swing on to the way car as it passed, just after the conductor and brakeman had each in turn done so. He testified that as he took hold of a railing and put his foot on the first step the train jerked and he was thrown down and seriously injured. The jury returned a verdict for the plaintiff and also made special findings. Among other things, the jury found that the train was going about seven miles an hour when the plaintiff undertook to board it; that the negligence of the defendant consisted in not selling him a ticket when he asked for it; in the conductor signaling the engineer to go ahead, knowing that the plaintiff desired to get aboard; and in the failure of the employees to use proper precautions to help plaintiff board the train after telling him to attempt to do so.

The defendant insists that the injury suffered by the plaintiff was the result of his own negligence, and also that in submitting the case to the jury the correct rule of the plaintiff's responsibility was not stated by the court. Some testimony was offered, tending to show that the injury resulted from the failure of the defendant to take precautions for the safety of the plaintiff when he was attempting to board the train, but the degree of negligence that would make the defendant liable was not correctly stated. Ordinarily a carrier is bound to exercise the highest degree of care for the safety of its passengers which is reasonably practicable. It is not expected, nor does the law require, that a carrier shall provide for passengers traveling on a freight train the safeguards and the conveniences ordinarily provided for travelers on passenger trains. The care and skill required necessarily depend upon the means of transportation, and precautions that would exonerate a carrier from responsibility for an injury to a passenger on a freight train would not suffice if the injury had been sustained on a passenger train. Freight trains, as all know, are mainly used for carrying freight, and there are many hazards on such trains that travelers are not subjected to on passenger trains. One who chooses this means of travel must be held to have done so with a knowledge of the hazards and inconveniences incident to the operation of such trains. A carrier is required to exercise due care towards passengers carried for hire on freight trains, but the extent of its responsibility is the subject of dispute. In the...