Marklinger v. The Union Pacific Railroad Company

• Decision Date: 10 April 1915
• Docket Number: 19,335
• Citation: 147 P. 1132,95 Kan. 69
• Parties: MARTHA MARKLINGER, Appellant, v. THE UNION PACIFIC RAILROAD COMPANY, Appellee
• Court: Kansas Supreme Court

147 P. 1132

95 Kan. 69

MARTHA MARKLINGER, Appellant, v. THE UNION PACIFIC RAILROAD COMPANY, Appellee

No. 19,335

Supreme Court of Kansas

April 10, 1915

Decided. January, 1915.

Appeal from Ellis district court; JACOB C. RUPPENHAL, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

DEATH -- Flagman at Highway Crossing -- No Action against Railroad Company. Where a flagman stationed at a highway crossing to give warning of an unsafe condition of the track is struck and killed by a train, no action against the railway company on account of his death can be based on the failure of the enginemen to sound the whistle or to stop the train promptly upon being signaled to do so by torpedoes placed on the track.

A. D Gilkeson, and J. H. Simminger, both of Hays, for the appellant.

R. W. Blair, C. A. Magaw, and T. M. Lillard, all of Topeka, for the appellee.

OPINION

MASON, J.:

Joseph Marklinger, a section hand, was struck and killed by a train of the Union Pacific Railroad Company. In an action brought against the company by his widow a demurrer to the evidence was sustained, and she appeals.

The evidence was to this effect: About two o'clock on the morning of June 21 the section foreman stationed Marklinger as a flagman at a highway crossing two or three miles east of Buffalo Park, just west of a place where for a quarter of a mile the track was overflowed as a result of a recent rain his duty being to give signals to stop trains, so that they would not run in on the soft place where the section crew were at work. One train from the east was stopped by the foreman, who told the engineer of the condition of the track. The train then proceeded. About daylight the foreman, who was about a quarter of a mile east of the crossing, saw a passenger train some two miles away, coming from the west, seven hours late. He wrote a message to give to its conductor, to be delivered to the telegraph agent at the next station, suggesting that slow orders be given, and asking for help at the overflowed place. This train struck and killed Marklinger. The rules required a flagman, when sent out to stop a train on account of a dangerous condition of the track, to place two torpedoes on the rail, about thirty feet apart, a half mile from the danger point, and a third at a distance of a quarter of a mile, the two first ones being spoken of as the caution signal and the other as the stop signal. The flagman was expected to remain at the stop signal until relieved. Upon hearing the caution signal the engineer was expected to...