Missouri, K. & T. Ry. Co. v. Jenkins

• Decision Date: 10 November 1906
• Citation: 87 P. 702,74 Kan. 487
• Parties: MISSOURI, K. & T. RY. CO. et al. v. JENKINS.
• Court: Kansas Supreme Court

87 P. 702

74 Kan. 487

MISSOURI, K. & T. RY. CO. et al. v. JENKINS.

Supreme Court of Kansas

November 10, 1906

Syllabus

Upon the facts of this case, it is held a traveler upon a highway should have stopped to look before driving his team upon a railway crossing.

[Ed Note.-For cases in point, see Cent. Dig. vol. 41, Railroads §§ 1043-1070.]

Error from District Court, Miami County; W. H. Sheldon, Judge.

Action by F. F. Jenkins against the Missouri, Kansas & Texas Railway Company and others. Judgment for plaintiff, and defendants bring error. Reversed.

John Madden, W. W. Brown and J. E. Maxwell, for plaintiffs in error.

Frank M. Sheridan, for defendant in error.

OPINION

BURCH, J.

The plaintiff sued for the value of a team of horses, harness and wagon injured at a highway crossing over the defendant’s tracks. There is no dispute about the material facts, and for the purposes of the decision, it may be conceded the railway company was negligent. The accident happened upon a main track running north and south. West of the main track 21 feet and 6 inches lay a side track filled with box cars which encroached upon both sides of the highway leaving a space some 20 feet in width for passage. The driver of the team approached the crossing from the west. His last look for a train before the instant the accident occurred was taken at a point 120 to 160 feet distant from the side track. From there to the side track his view of both tracks toward the south was obstructed, and the cars on the side track continued to obstruct his view of the main track in that direction. He did not stand in the forward part of his wagon box where he could more quickly have seen, but, without reason, so far as the evidence discloses, took a position over the rear axle 18 feet from his horses’ heads. As the team crossed the side track, the near horse shied slightly at the box car on the north, and drew his momentary attention in that direction. The team, however, was gentle, and at all times under control. When he looked to the south a north-bound train was upon him. He said he was listening and heard no train, that he knew a train was likely to pass at any time, and that he was familiar with the crossing and its surroundings. The jury found specially that he knew of the obstructions, and knew they cut off his view to the south; that he could have seen the danger of a collision before it took place had he stopped to look before driving upon the main track, and that he could have avoided the collision had he stopped to look and listen but that he did not...