Kansas Pac. Ry. Co. v. Whipple

Decision Date09 June 1888
Citation18 P. 730,39 Kan. 531
PartiesTHE KANSAS PACIFIC RAILWAY COMPANY v. EDWIN WHIPPLE, an infant, by his next friend, Frank B. Whipple
CourtKansas Supreme Court

Error from Douglas District Court.

ACTION to recover damages for bodily injuries. Judgment for the plaintiff Whipple for $ 7,500 and costs, at the May term 1886. The defendant Railway Company brings the case to this court. The facts are fully stated in the opinion.

Judgment reversed.

J. P Usher, A. L. Williams, and Chas. Monroe, for plaintiff in error.

Byron Sherry, and Thomas P. Fenlon, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

This was an action brought by Edwin Whipple, an infant, by his next friend, Frank B. Whipple, against the Kansas Pacific Railway Company, for damages alleged to have been caused by running an engine carelessly, recklessly and wantonly over and upon him. His arm was mashed, his leg crushed, and his head badly cut. His arm was subsequently amputated. The action was tried before the court and a jury. Judgment was rendered in favor of the plaintiff and against the defendant for the sum of $ 7,500 and costs. The defendant brings the case to this court, and asks for a reversal of the judgment.

The facts of the case as found by the jury are as follows: Edwin Whipple, at the time of his injuries -- August 2, 1879 -- was in his ninth year, and deaf and dumb; he lived with his parents in the east part of North Lawrence; his father was a shoemaker, and had resided at the same place in North Lawrence for about twelve years; his shop was nearly opposite the railroad depot; on the morning of August 2, about nine o'clock, Edwin and his mother stopped in his father's shop to rest on their way home; he went from his father's shop along the sidewalk on Locust street as far as the L. L. & G. crossing, in charge of his mother; then, at his mother's direction, he went into Dicker's store after candy; from there he went upon the track of the railroad and followed his mother down the track; his mother directed and expected him to follow her, but did not mention any track upon which he was to go; after Edwin came upon the railroad he passed along between the rails for some distance before he was struck by the engine; he could have seen the engine approaching him from behind if he had looked; a short time before he was run over, Mr. Tudhope, having authority from the railroad company, directed Kennedy, an engineer operating a locomotive, to take Mr. Mallison, one of the company's employes, to his home east of the depot, near Bismarck, upon the engine; the engine was then standing on the first side track south of the main track in the yard of the railroad company, a short distance east of the depot; the engineer ran his engine and tender west over the switch at the depot platform so as to get on the main track, and then started east on the track toward Bismarck; he stopped his engine opposite or near the carpenter shop of the railroad company, and took Mallison on board, and then started toward Bismarck; the engine was moving backward, the tender being in front, as it proceeded east on the main track; it was seven hundred and ninety-six feet from the place where Mallison got on the engine to Main street, or Dicker's crossing; the boy was struck by the engine seven hundred and sixty-nine feet from the Main street crossing, but there was no street-crossing at the place; the bell of the engine was rung at starting, but ceased at some point between the carpenter shop and Dicker's crossing; the whistle was sounded upon the engine about forty-five or fifty feet from the boy before he was struck; neither the engineer nor anybody else on the engine knew who the boy was that they were approaching on the track, nor did they know that the boy was deaf; the engine was running at the rate of twelve miles an hour; the engineer shut off the steam on the engine at or near the Main street crossing; the plaintiff's mother knew that engines and trains were frequently passing along the railroad where her boy was struck; there was a traveled way for teams and wagons along the south side of the track where the boy was struck, where he could have walked without being between the rails; there was also a path along the side of the track where the boy could have walked without going between the rails; there was also one or more traveled streets by which the boy and his mother could have gone from Dicker's store to his home without passing upon the track at all; the boy, by reason of his deafness, was unfit to pass along the railroad tracks, or to be in places of danger unattended; his mother was aware that on account of his infirmities he was unfitted to be in places of danger; in the discharge of her parental duty, it was the duty of the mother to attend and see that her boy was not exposed to danger, and that he should not go by himself in places of danger.

The jury also returned the following special findings of fact:

"Could the injury to the plaintiff have been avoided by the exercise of reasonable care upon the part of the employes, considering all the surrounding circumstances? Yes.

"Was not the injury inflicted by and through the reckless and wanton neglect of the employes in charge of the engine? Yes.

"Were such warnings given by the employes of defendant on the engine as would have enabled plaintiff to have known of the approach of the engine in time for him to have left the track, if he had not been deaf? No, not one of his years and discretion.

"Did not the engineer, as soon as he suspected and apprehended that the plaintiff did not or would not heed the signals, reverse his engine and attempt to stop it? His signal was not given in time to ascertain the intention of the plaintiff."

On the part of the plaintiff, the testimony of Jones, Evans and Titus was to the effect that the engine which struck the boy was going from twenty to twenty-five miles an hour, and that no bell was sounded, or whistle blown.

The testimony of Kennedy, the engineer, was:

"I first saw a boy walking on the track a little east of the tool-house; the tool-house is two hundred or two hundred and fifty feet east of the crossing of Main street, which is the street that goes by Dicker's store; I was at the Main street crossing when I first saw the boy; the bell was ringing all the time from the time we started from the carpenter shop; when I was within about one hundred and fifty feet of the boy, I sounded the whistle, giving four or five successive blasts; as I got nearer to him -- say from thirty to forty feet -- I was afraid he was not going to get off the track, and whistled again, and at the same time reversed the engine; it usually takes three motions to reverse the engine, but in this case it took but two motions only, as I had shut off the steam about the Main street crossing, and the two motions were made in an instant; the speed of the engine was about six miles an hour before I shut off steam; after that it gradually decreased until I reversed the engine, but it would not decrease very much in that distance; after I reversed the engine it went about one hundred feet before it stopped; as soon as it stopped I got off the engine and went to the boy; he was lying on the track about ten feet west of the engine; that is, the tender and engine had gone over him and passed ten feet beyond; I should think that the engine and tender were fifty feet long; of course, if I had known the boy was deaf, I could have stopped the engine after I saw him, but I did not know the boy, nor know he was deaf and dumb; I thought he was large enough to understand the signals; until I whistled the second time and reversed the engine, I had no reason to suppose that he did not hear the first whistle and the bell, and thought that he intended to stay on the track until the engine got most to him and then jump off, as boys of his size had frequently done before along that track."

The testimony of Mallison was:

"After the engine came down and stopped, I got on, and Mr. Tudhope gave the engineer orders to take me home; we went leisurely along about six miles an hour; I was standing partly on the engine and partly on the tender, with my face towards Bismarck; as we were passing down we saw a boy on the track about five hundred feet ahead of us; the bell was rung for the crossing and rung until we got over the crossing; I think we rung the bell at the crossing the second time, and blew the whistle; I supposed the boy would get off the track; I did not know him; judging him as he appeared to me while standing on the engine, he was of sufficient size to apprehend danger signals; I heard the whistle; Kennedy blew the whistle near the boy when he saw the boy was not going to get off; he blew several whistles in succession sharply; we were from two hundred and fifty to three hundred feet from the boy when the whistle was blown; the engineer reversed the engine when he saw the boy was not going to get off; by throwing the engine over he arrested its passage; it stopped after going over the boy; it passed over him about ten feet; and I think we were from two hundred to two hundred and fifty feet from the boy when I observed the engineer reversing the engine."

The testimony of William Dillon was:

"I was the fireman on the engine that ran over the boy; Mallison about opposite the carpenter shop came along with his carpet satchel, and after we had fixed the cars and he said he was ready to go, he got on and I rung the bell and we started; I attended to ringing the bell and to minding the street-crossings; I let go the bell-rope to attend to the fire, and Kennedy sounded the whistle, for then there were several going along the track; we noticed the boy some...

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