Land v. The St. Louis & San Francisco Railroad Company

• Decision Date: 08 May 1915
• Docket Number: 19,466
• Citation: 95 Kan. 441,148 P. 612
• Court: Kansas Supreme Court
• Parties: S. M. LAND, as Administrator, etc., Appellee, v. THE ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

148 P. 612

95 Kan. 441

S. M. LAND, as Administrator, etc., Appellee, v. THE ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

No. 19,466

Supreme Court of Kansas

May 8, 1915

Decided. January, 1915.

Appeal from Bourbon district court; CHARLES E. HULETT, judge.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILWAYS--Death of Section Man--Duty of Railroad Company--Signals--Warnings--Speed of Train. Railroad companies in the operation of their roads may rightfully assume that their section men while at work upon or along the track will look out for the approach and passage of trains at all times, and ordinarily such companies owe to their section men no duty to warn them of the approach of trains save when such employees are found to be in a place of danger and it becomes apparent that they will not or can not protect themselves.

2. SAME--Speed of Train--Negligence. Ordinarily it is not, and under the facts of this case it was not, negligence towards the section foreman to run a passenger train at a speed of forty-five miles an hour.

3 SAME. Crossing signals are not intended or required for the benefit of section men at work upon or along the track near a crossing, and the failure to give such signals is not negligence as to such employees thus engaged; and this rule is not changed by the fact that a preceding train going in the opposite direction on one of the two tracks has left the other track enveloped in steam and smoke, such condition requiring added vigilance on the part of such employees to protect themselves.

R. R Vermilion, and W. F. Lilleston, both of Wichita, for the appellant; W. F. Evans, of St. Louis, of counsel.

J. I. Sheppard, James G. Sheppard, Kate Sheppard, and A. M. Keene, all of Fort Scott, for the appellee.

West J. West, J. dissenting

OPINION

WEST, J.

This action was brought by the administrator of the estate of Samuel H. Simmons to recover for his death caused by one of the defendant's engines. The decedent was foreman of the section extending from Fort Scott south to Edwards Junction, between which points there is a double track. It was alleged that at the National avenue crossing, near the southeast limits of Fort Scott, on the morning in question the deceased was standing while a southbound freight train passed on the west of the two tracks, and owing to the heavy grade and weight of the train the engine was emitting a large amount of steam and smoke, the atmosphere being very heavy, there being no wind or breeze so that the steam and smoke made it almost impossible to see for any distance; that as soon as the freight train passed the deceased crossed over the west track and walked for a short distance south between the two parallel tracks and then attempted to cross the east track when he was struck and instantly killed by a northbound passenger train operated by the defendant. It was charged that the death was caused "by reason and on account of the following wrongful and negligent and reckless and careless acts and omissions of defendant and its servants and employees; in negligently approaching said place where said large amount of smoke and steam was gathered and in negligently approaching said Samuel H. Simmons and in negligently approaching said National avenue with said passenger engine at the higher rate of speed than twenty-five miles per hour, to wit, at about the rate of forty-five miles per hour, and in negligently and carelessly and wrongfully failing and neglecting to blow the whistle and ring the bell of said passenger engine when it approached said place where said large amount of smoke and steam was gathered and when it approached said National avenue and when it approached said Samuel H. Simmons."

The action was prosecuted under the federal employer's liability act (Part 1, 35 U.S. Stat. at Large, ch. 149, 4 U.S. Comp. Stat. 1913, §§ 8657-8665), the defendant being engaged in interstate commerce. The account of the occurrence as detailed by the plaintiff's witnesses was in substance that the foreman and his men were working south from Fourth street in the city of Fort Scott; that on reaching National avenue crossing the hand car was placed on the west side of the west track, shortly after which a freight train of some fifteen or eighteen cars besides the engine and caboose passed south on the west track, the engine emitting a large amount of smoke and steam. One witness testified that the engine was throwing steam all the way from town up; that it covered the east track and extended back from the engine at the time of the collision almost the entire length of the train.

"It covered the east track, all along the east side of that train running south. You couldn't see a man any distance at all in it. That was true all along the east side of that train. I remember when the caboose reached the avenue--the caboose of the train that passed."

As Mr. Simmons walked around the caboose and up between the tracks the freight train was moving south a very little faster than a man could walk at a good gait.

"I never discovered him any more. I was looking back towards town to see if there was another freight following this one. I did not see any object there in connection with any other train on the east track there. Just after Mr. Simmons passed the cattle guard south through this steam, I discovered an object, but I couldn't tell exactly what it was, run by this freight train. Train No. 106 came north on the east track, passing that freight train that morning, yes sir. With reference to when Mr. Simmons went around the rear end of the caboose of the freight train and started south there, I did not see this train come up on the east track there. After Simmons went around there I did not see any object at all. I did not see the passenger train come north until after it had run through that steam. As it came through the steam I seen a dark object roll off of the pilot and afterwards discovered it was Mr. Simmons. . . . When I saw this object roll off of the pilot of the train, the steam had not evaporated enough so I could tell who or what it was. I could see the dark object of the engine, just about the time it struck Simmons. That was somewhere about three hundred feet from where I was standing. . . . After Mr. Simmons passed the cattle guard going south, I did not see him until I saw the dark object pitch off the track by the pilot of 106. . . . I saw Mr. Simmons going south there after he passed behind the caboose of the freight train, not more than five or six steps south of the cattle guards. What prevented me from seeing him from there on, was the steam in the way. There was quite a large batch of steam there along the whole east track there, along that freight train. . . . Couldn't have seen him over--well not over ten steps, anyway. That was on account of the steam. As to the steam covering the entire east track up as far as the freight train, I didn't notice anything at all but a large body of steam."

Before Mr. Simmons started south it was suggested that the hand car be put back on the track, and it appears that he directed that this be not done as No. 106 was due. Another witness who appears to have seen the northbound passenger as it was leaving Edwards Junction testified that as the freight train passed, going south, there was much steam filling up the track on the east side; that when Mr. Simmons started to go around the caboose the witness could not see him afterwards on account of the steam. "Q. As it, [106,] went across the avenue, did you see Mr. Simmons' body on the pilot of the engine? A. I didn't see whether it was him or not, I couldn't say whether it was him or not, until after it done got by. Q. What prevented you from seeing plainer what it was that fell off of the pilot of that engine? A. Smoke and gas and steam from that engine." This witness testified that when it was suggested to put the hand car on the track Mr. Simmons stated, "Six is on time. It may not be here for an hour yet." Edwards Junction is about two and one-half miles south of the crossing in question.

The jury found for the plaintiff, answering that they did not know how far the passenger train was away from the deceased when he stepped on the east track where he was struck. As to what there was to prevent him from observing the approaching train they answered, "Steam, smoke and noise of south-bound freight train." They found that the engineer or fireman began whistling an alarm as soon as he discovered the deceased on the track and set the air brake in emergency, but that just prior to the collision the engine bell was not ringing; that they did not know whether the deceased could have seen the train coming if he had looked at or about the same time the witness testified that he looked.

"10. If you find for plaintiff, please state in what respects, if any, defendant was negligent on the occasion complained of, and through what employees, if any, defendant was thus negligent. A. By high rate of speed and crew on train No. 106."

It will be observed, therefore, that while the petition alleged that the negligence consisted of the dangerous rate of speed and failure to blow the whistle and ring the bell the only negligence found by the jury was the high rate of speed, which was shown to have been about forty-five miles an hour. While they did not find (No. 8) that the engine bell was ringing just prior to and at the time of the collision, they did not seem to regard this as negligence, and as will be seen later, crossing signals are not required for employees working on the track, hence the recent decision in Springer v. Railroad Co., ante, p. 408, does not apply as to the findings, and speed remains the only element of negligence found.

It is contended by the defendant that no...