Meador v. Missouri P. Ry. Co.

• Decision Date: 09 June 1900
• Parties: MEADOR v. MISSOURI PAC. RY. CO.
• Court: Kansas Supreme Court

61 P. 442

62 Kan. 865

MEADOR v. MISSOURI PAC. RY. CO.

Supreme Court of Kansas

June 9, 1900

Error from district court, Leavenworth county; Lewis A. Myers Judge.

Action by Sarah E. Meador, administratrix, against the Missouri Pacific Railway Company, for negligently causing the death of her husband. The court directed a verdict for defendant, and plaintiff brings error. Reversed.

Kelso & Van Tuyl, for plaintiff in error.

Waggener, Horton & Orr, for defendant in error.

Opinion

PER CURIAM.

It was error for the trial court to direct a verdict for the defendant below, in view of the high degree of care required of carriers to prevent injuries to passengers. "It [the railway company] must use the most exact diligence, and is answerable for any negligence, however slight. It is bound to exercise the highest degree of practicable care,-not the utmost possible precaution that might be imagined, but the highest care and best precaution known to practical use, and which are consistent with the mode of transportation adopted." Railway Co. v. Walsh, 45 Kan 653-656, 26 P. 45. After the plaintiff below had introduced her evidence, the burden of proof was then placed upon the railway company to show that the derailment of the train resulted from inevitable accident, or something against which no human prudence or foresight on the part of the company could provide. Railroad Co. v. Elder, 57 Kan. 312, 46 P. 310. See Railroad Co. v. Burrows, 61 Kan.-, 61 P. 439. Applying such rule to the case at bar, we cannot say that human prudence and foresight might not have averted the accident. It appears that sectionmen went over and inspected track every day, but omitted doing so on Sunday, the day plaintiff’s husband was killed. Had they done so, they might have seen the horses on the right of way and driven them off.

Again we think that the question of the sufficiency of the wire cattle guard for the purposes intended should have been submitted to the jury. There was some testimony showing its inefficiency to turn stock. The jury also saw the guard, which was introduced in evidence, and should have been allowed to pass upon its sufficiency, and determine whether it was the best for practical use. Timins v. Railway Co., 72 Iowa, 94, 33 N.W. 379. The failure to make the cattle guard a part of the case-made is no ground for a dismissal of the petition in error. It was a bulky iron structure. The descriptions given...