Jones v. The Atchison

• Decision Date: 07 July 1911
• Docket Number: 17,002
• Citation: 116 P. 496,85 Kan. 313
• Court: Kansas Supreme Court
• Parties: J. L. JONES, Appellant, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellee

116 P. 496

85 Kan. 313

J. L. JONES, Appellant, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellee

No. 17,002

Supreme Court of Kansas

July 7, 1911

Decided July, 1911.

Appeal from Osage district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

CONTRIBUTORY NEGLIGENCE --Demurrer to Evidence Properly Sustained. A railroad crossing in a city was required by ordinance to be guarded by gates let down when cars were passing. One of the gates was out of repair, but plaintiff who drove up from the east in a buggy with back and side curtains down, saw that the other gate was down at the farther side of the crossing, and it indicated to him that a train was likely to be passing at any time. He was familiar with the crossing and knew that he could not see a train approaching from the south until his horse reached the east switch track, but after halting or stopping, and looking, twelve feet back, he proceeded in a "sort of jog trot" until his horse reached the track, when it was frightened by a freight car backed from the south, and plaintiff was injured. No signal or warning save the west gate was seen or heard by him until just as he saw the car, when some one exclaimed "Look out!" He testified that he was going to cross the switch track and then he could go north or south (before reaching the main track), to another street. That he could either have done that or "stayed in there until they passed." That he made up his mind to take that chance at his own hazard and risk before he received any injury at all. Held, that the trial court properly sustained a demurrer to plaintiff's evidence.

A. B. Crum, and J. P. McLaughlin, for the appellant.

William R. Smith, O. J. Wood, and Alfred A. Scott, for the appellee.

OPINION

WEST, J.:

The appellant, J. L. Jones, sued the railway company for damages caused by its alleged negligence in frightening a horse driven by him, resulting in throwing him from the buggy in which he was riding and so injuring his leg that amputation became necessary. At the close of his evidence the trial court sustained a demurrer thereto, and this is the principal error assigned.

Where the railroad crosses Market street between Fifth and Sixth streets in Osage City there is the passing track, eight or ten feet east of which is the main track, and about thirty or forty feet east of the main track are two switch tracks about eight feet apart and converging at the south side of Market street, where there is a pony switch. Market street is about eighty feet wide, sixty-five or seventy feet between the curbs, and runs east and west across the tracks which run northeast and southwest. At the north of the crossing on the east side is a one-story brick building within three or four feet of the east switch track, and at the south side a two-story building known as the Hershey building within three or four feet of the east track, and east of this building up to the next corner are other buildings one and two stories high, so that a person approaching the crossing from the east can not see a train approaching from the south on the east track until he comes past the corner of the Hershey building, and if driving he could not see past the Hershey building until the horse had reached the east track. The railway company maintained gates at the crossing on either side of its tracks, eighty to one hundred feet apart, worked by one device operated by a watchman. Such gates were required by a city ordinance to be down whenever cars were passing. The east gate, ten or twelve feet from the east track, had at the time of the injury been out of repair about two days, of which fact Jones testified he was not advised. On the day in question Jones was driving back to the livery stable west of the tracks on Fifth street, where he worked, a horse and buggy which had been delivered to an office east and north of the crossing. It was a clear windy day, the wind blowing from the south or southwest. The watchman was standing at the west gate leaning over the gate stand, the west gate being down. No signal or warning aside from the west gate was seen or heard by Jones, and as he reached the east switch track a box car backed north by an engine frightened the horse, the injury resulting. The horse was gentle and used to the town and crossings. The side and back curtains of the buggy were down. Jones approached the crossing in a sort of jog trot and stopped or halted when he reached the location of the east gate and looked out, and seeing no train proceeded until his horse reached the east track, when someone exclaimed "Look out!" and the car came north at a speed variously estimated by the witnesses from four to ten miles per hour. When about one hundred feet from the crossing he looked and saw that the west gate was down, which indicated to him "that he wanted to look out and that a train was coming along." He was entirely familiar with the crossing and had been for a number of years, and was quite familiar with the times of the trains there and knew that the buildings mentioned obstructed the view as already indicated.

William Sherry testified that he was driving west on Market street and stopped when he got close to the crossing or within about forty feet of the east gate near the north side of the street; that he saw Jones slow his mare down when he got near the gate and then start on and drive up very close to the track; that just as he got up on the track the car came from the south; that a man would have to get as near the track as Jones was before the car could be seen by one driving in the center of the street; that witness saw that the west gate was down when he stopped forty feet east of the east gate; could not say whether after Jones stopped the horse walked or continued to trot until reaching the track; that at the same instant the witness saw the car he heard an outcry.

Holly McClancy, a hack driver, was standing at the Santa Fe depot and when he first observed Jones the latter was about ten feet east of the gates; had his head out looking to the north; at that time witness saw a freight train backing in from the southwest; that Jones drove up about fifteen feet to the rail, and there discovered the train and began to back his horse; when his horse reached the east rail of the track the train was between the three-cornered building and the middle of the street, Jones being about thirty feet north of the building; that when his horse hit the east rail about one-half the length of the car had passed the three-cornered building...