Limb v. The Kansas City

• Decision Date: 10 March 1906
• Docket Number: 14,352
• Citation: 73 Kan. 220,84 P. 136
• Court: Kansas Supreme Court
• Parties: JOSEPH LIMB et ux. v. THE KANSAS CITY, FORT SCOTT & MEMPHIS RAILROAD COMPANY

84 P. 136

73 Kan. 220

JOSEPH LIMB et ux. v. THE KANSAS CITY, FORT SCOTT & MEMPHIS RAILROAD COMPANY

No. 14,352

Supreme Court of Kansas

March 10, 1906

Decided January, 1906.

Error from Cherokee district court; WILLIAM B. GLASSE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

RAILROADS--Injury to Trespasser--Contributory Negligence. A person who for his own convenience walks on the main track of a railroad, and does not look or listen, or take any precaution for his own safety, and while so walking is injured, is guilty of contributory negligence which will bar a recovery of damages for such injury.

Blue & Hamilton, and H. A. Forkner, for plaintiffs in error.

L. F. Parker, and Pratt, Dana & Black, for defendant in error.

GRAVES J. All the Justices concurring.

OPINION

GRAVES, J.

About March 28, 1900, David Limb, a boy about sixteen years of age, was run over and killed by the cars of the defendant in error, at the town of Scammon, in. Cherokee county, Kansas. Joseph Limb and Annie Limb, the parents of the deceased, brought this action, August 3, 1900, in the district court of that county, to recover damages suffered by them on account of the loss of their son. At the trial a demurrer to the evidence was sustained, and a judgment entered for the defendant. The plaintiffs excepted, and bring the case here, assigning this order and judgment of the district court as error.

The facts may be briefly stated, as follow: Scammon is a small mining village located on both sides of the defendant's railroad. Coal-mines are on the east side of the track. Many of the miners live on the west side thereof. The miners, in going to and from their work, and school children and other citizens have for many years crossed over the railroad-tracks and right of way freely and promiscuously, resulting in paths having become worn in many places. No objection had been made by the defendant to this use of its grounds.

David Limb, the deceased, lived in the west part of town, and had been at work in the mines about four years prior to his death, during which time he passed over and across the railroad-tracks and grounds at his convenience. The depot was situated between the main track on the west and the switch, or house-track, on the east. These two tracks came together about 700 feet south of the depot.

About twenty feet south of the depot platform was a crossing over the main track. Between the house-and main tracks was a traveled pathway extending from a street, which crossed the railroad south of the switch, and ran north to this crossing near the depot. It was convenient for the miners who lived west of the railroad to come from their work up the traveled path between the two tracks to the crossing near the depot and then cross over the main track. There was nothing, however, to prevent them from crossing at any place. About two o'clock in the afternoon of the day of the injury David Limb walked up from the south between the two tracks, near the main track, apparently intending to cross at the crossing near the depot. While so traveling a freight-train came in from the south and passed him. While the train was passing the caboose and a box car were detached from the moving train, but followed after by reason of the momentum acquired before they were detached. The front end of the train passed north beyond the depot. When it passed the deceased the caboose and box car were a short distance behind him, moving slowly north. As soon as the main part of the train passed the deceased apparently assumed that it was the entire train and stepped upon the end of the ties and followed it without noticing the cars coming behind him. He was. soon overtaken by the caboose and box car and run over. The deceased did not look behind him at any time. He was apparently unconcerned and indifferent, as if wholly unconscious of danger.

It was unnecessary for him to go upon the ties. The walking was more convenient on the ground where he had been while the train was passing. He was not attempting to cross the track. He was not between...