Losey v. The Atchison

• Decision Date: 11 March 1911
• Docket Number: 16,867
• Citation: 84 Kan. 224,114 P. 198
• Court: Kansas Supreme Court
• Parties: MARY J. LOSEY, Appellant, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellee

114 P. 198

84 Kan. 224

MARY J. LOSEY, Appellant, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellee

No. 16,867

Supreme Court of Kansas

March 11, 1911

Decided January, 1911.

Appeal from Clay district court.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT

1. RAILROADS--Duty to Give Warning to Shippers Walking in the Yards. Evidence that at a railroad station where cattle in shipment were frequently detained at night it was customary for persons accompanying live stock in transit to walk back and forth over the yards, between their cars and the depot, is sufficient to justify a finding that the company owed a duty to such persons so engaged to give a warning of the approach of a train.

2. CONTRIBUTORY NEGLIGENCE--Shipper Injured While Walking in Railroad Yards. One who is accompanying live stock in shipment, and has occasion to walk at night between his train and a depot, can not be said as a matter of law to be guilty of negligence if in attempting to walk in the safe space between two tracks he inadvertently gets close enough to one of them so that he is struck by an approaching train.

3. CONTRIBUTORY NEGLIGENCE--Failure of Shipper to Carry a Lantern, as Required by His Contract. Where under such circumstances a shipper is killed by being struck while walking near a track, by a freight train running backward without a sufficient watch being maintained at the rear, and without a whistle or bell being sounded, the fact that he was not carrying a lantern, although his shipping contract required him to do so, does not as a matter of law bar a recovery of damages on account of his death, since it does not conclusively prove that if he had carried a lantern he would have escaped injury.

4. EVIDENCE--Testimonial Knowledge of Witness--"I Think." The ordinary presumption is that a witness who uses the expression "I think" means that his observation was indistinct or his recollection uncertain regarding the matter testified to rather than that he is without personal information on the subject.

F. B. Dawes, R. C. Miller, and C. P. Rutherford, for the appellant.

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

OPINION

MASON, J.:

Mary J. Losey sued the Atchison, Topeka & Santa Fe Railway Company, alleging the death of her husband to have been caused by its negligence. A demurrer to her evidence was sustained, and she appeals.

There was evidence tending to show these facts: The deceased, Robert M. Losey, was accompanying a shipment of live stock and household goods. The train arrived at Strong City about ten o'clock at night, and was placed on a siding, his car being about a block and a half east of the depot. Losey, with two other shippers, G. F. McClean and James H. Russell, went to the depot to learn when their train would leave, and were informed that it would not go out before morning. After eating at a restaurant they returned to the train to look after the stock and lock the cars for the night. They then started back to the depot to spend the night, the weather being cold. They walked west between the track on which their train stood and a track lying between four and five feet north of it; one witness said it was about four feet from the south rail of the north track to the cars on the other track. They all walked between the tracks, nearly abreast, Losey on the right, McClean on the left, and Russell a little behind them. When they were about half way to the depot the rear car (a coal car--that is, a flat car with a coal bin on top of it) of a part of a freight train backing west over the north track, at the rate of about five miles an hour, struck Losey, throwing him under the wheels and causing his death. His companions were listening, but heard no bell or whistle. They looked up the track before starting, but saw no train. None of the three carried a light of any kind. There was no person on the rear end of the rear car, but a brakeman with a lantern was on the other end of it or on the nearer end of the car next to it. A string of freight cars stood on a track north of that on which the accident occurred. These cars, with those of the train to the south, increased the darkness by cutting off a part of the light from the street lamps. There was still enough light, however, so that a man could have been seen at a distance of two car-lengths. It was usual for shippers of live stock, while waiting at Strong City at night, to walk back and forth between their cars and the depot, over the railroad yards, as Losey did. After McClean had described the manner in which he and the two others walked between the tracks, this question was asked on cross-examination: "Mr. Losey, then, must have been walking on the ends of the ties of the track upon which the train was approaching, was he not?" He answered: "I rather think he was." Russell also testified that he believed Losey was walking on the ends of the ties. Russell himself was walking south of the ends of the ties and was struck on the right shoulder by a coal car. It was not shown whether or not the ground between the tracks was surfaced up level with the ties.

It may fairly be inferred that it was sufficiently common for shippers of live stock to be walking at night near where the deceased was killed, so that the presence of somebody at that place was reasonably to have been expected. Therefore there was room for a finding that the trainmen owed a duty to Losey to give warning of the approach of the train, for the evidence tends to show that he was not a trespasser, nor a mere licensee; that he was engaged in a legitimate errand incident to the proper care of his car, and was subject to the rule applicable to a shipper in charge of stock on a freight train. (Coon v. Railway Co., 82 Kan. 311.) The fact that McClean and Russell heard no bell or whistle, although they were listening, justifies an inference that none was sounded, unless the train was so long that the sound would not carry the distance. In that case, there was warrant for holding the railroad company to the requirement of maintaining an efficient watch at the rear. Although the brakeman on the train may have been in a position to see the three men, the fact that he gave them no warning would support a finding that he was not keeping a sharp lookout, since there was evidence that a man could be seen at a distance of two car-lengths. The alternative would be that he did see them but remained silent--a less favorable supposition for the defendant. Upon these grounds we conclude that upon the issue of whether the company was negligent there was sufficient evidence to go to the jury.

A more difficult question is whether the deceased was himself, as a matter of law, guilty of such negligence as prevents a recovery. He was not in the situation of an ordinary passenger; that is, he was not absolved from all duty to watch for approaching trains. He was required to exercise care in that regard for his own protection, adapted to the circumstances. (Coon v. Railway Co., 82 Kan. 311.) If when struck he had been walking upon the track between the rails, while he might with equal convenience have walked in safety between the tracks, no recovery could be had, because it would then be clear that he had voluntarily and unnecessarily chosen an unsafe place in lieu of a safe one. (Railway Co. v. Schwindt, 67 Kan. 8; 33 Cyc. 826.) If he had been walking upon the ends of the ties as a matter of deliberate choice the situation would have been substantially the same, since he must have known that the danger there was as great as between the rails. Or if he occupied that position unconsciously, but by reason of a failure to use ordinary care to avoid it, his negligence would bar recovery. But if he attempted to walk in the safe space between the two tracks, and while using reasonable diligence to that end inadvertently came within the overhang of the cars and so met his death, he was not guilty of contributory negligence. We think the evidence is not necessarily inconsistent with the last hypothesis, and therefore that he can not be said to have been negligent as a matter of law. He was of course in fact quite close to the track on which the train was approaching, but he may have supposed that he was near the middle of the space between the two tracks. In the yards, within so short a distance from the depot, it is not unreasonable to suppose the ballast between the tracks was surfaced even with the ties, the contrary not being shown and the burden of proving contributory negligence being on the defendant. The presence of the freight train on the track to Losey's left may have made it easier for him to misjudge his position, or caused him involuntarily to incline to the other side, bringing him within reach of the cars on the right-hand track without his realizing it. Such an error under the circumstances can not be said conclusively to show a want of ordinary care. It can not be said with certainty that the exercise of reasonable diligence would enable one so situated to keep within the narrow zone of safety. Of a somewhat similar situation it was said, in Chicago, B. & Q. R. Co. v. Troyer, 70 Neb. 293, 103 N.W. 680:

"It is . . . argued . . . that, in stepping to one side of the center of the path between the tracks where he was walking so as to come in the path of the projecting portions of the engine, his act was equivalent to stepping between the rails of the track with knowledge, which he is shown to have possessed, that this track was being used by passing engines and cars, used in and about the business of the company in its freight yard, where the injury occurred . . A person in walking between the two tracks . . . would, at times, in all probability, and perhaps unconsciously,...