Missouri Pac. Ry. Co. v. Johnson

• Decision Date: 08 November 1890
• Citation: 24 P. 1116,44 Kan. 660
• Parties: THE MISSOURI PACIFIC RAILWAY COMPANY v. SARAH J. JOHNSON
• Court: Kansas Supreme Court

24 P. 1116

44 Kan. 660

THE MISSOURI PACIFIC RAILWAY COMPANY v. SARAH J. JOHNSON

Supreme Court of Kansas

November 8, 1890

Error from Wilson District Court.

THE opinion states the facts.

W. A Johnson, for plaintiff in error.

S. S Kirkpatrick, for defendant in error.

GREEN C. All The Justices concurring.

OPINION

GREEN, C.:

Sarah J. Johnson brought this suit in the district court of' Wilson county, against the Missouri Pacific Railway Company to recover damages for alleged personal injuries which she claims to have sustained. She alleged in her petition:

"That on the 3d day of April, 1887, the defendant was operating a certain line of railroad through the county of Wilson and state of Kansas, known as the Verdigris Valley, Independence & Western Railroad, which said railroad so operated by defendant runs across a certain highway, which said highway was duly and legally laid out and traveled prior to the construction of said railroad; that where said railroad crossed said public highway, and prior to the construction of said railroad, the ground was smooth and level; that in constructing said railroad, an embankment some six feet high was thrown up by the defendant company, upon which it constructed its said road; that the defendant negligently and carelessly constructed approaches to said crossing which were narrow, steep and unsafe, and has failed to restore said public highway to its former condition, or to such condition as did not materially impair its usefulness; that the approach to the railroad by the public highway was obstructed by a high hedge along the north side of the highway, so it was impossible for a person using the highway to observe a train or other object through the hedge; that where the railroad passes through the hedge fence, an opening was cut for a distance of eighty feet in width, and aside from this opening this hedge fence grew upon the north side of the highway a distance of half a mile, and a distance of a quarter of a mile on each side of the railroad track, which rendered said crossing very dangerous unless a great deal of care was exercised upon the part of the railway company in operating the road; that on the 3d day of April, 1887, the plaintiff was traveling upon said highway in a wagon drawn by two mules, going in an eastern direction; that said railroad, by reason of said hedge fence, was entirely obstructed from the view of the plaintiff north of the crossing; that the plaintiff, knowing the dangerous condition of said crossing, approached the same with great care, intending to stop, look and listen for an approaching train; but upon approaching said crossing, and before she could get a view of said track, said defendant, its agents and servants, ran one of its trains of cars, drawn by a locomotive engine, down said track, in a southeasterly direction, and over said crossing, which said train of cars passed directly in front of the mules driven by plaintiff's husband, and caused them to jump from the narrow approach to said crossing down an embankment, a distance of six feet, carrying with them the wagon in which plaintiff was then sitting. By reason of the premises the plaintiff was thrown out of said wagon, down said embankment, striking a post upon the side of the highway, then dragged by said team a distance of about eighteen feet, and was mangled, bruised, and injured. Plaintiff avers that defendant neglected and failed to sound the whistle of said locomotive engine eighty rods before approaching said crossing; by reason thereof she was not warned of said approaching train until the same passed over the crossing immediately in front of the mules driven by her husband; that had defendant's agents and servants sounded said whistle, as it was their duty to do, eighty rods before approaching said crossing, she would have heard the same, and averted the accident."

To this petition, the railroad company interposed a general denial, and for a second defense set up contributory negligence upon the part of the plaintiff, which directly contributed to the injury. The cause was tried in October, 1887, before a jury, and the plaintiff below recovered a judgment for $ 1,700, which was approved by the trial court.

A number of errors are assigned upon the rulings of the district court.

I. The first is, that the court should have sustained the demurrer of the defendant to the evidence of the plaintiff. The accident occurred on the afternoon of Sunday, April 3, 1887 the plaintiff was returning home with her husband and two children from a neighbor's; they were riding in a wagon drawn by two mules; on the north side of the highway on which they were traveling, there was a tall hedge fence which obstructed the view of a train passing on the track of the defendant's railroad; this hedge extended for about a half-mile east and west of the railroad crossing; the railroad at the crossing was not quite parallel with the hedge, the railroad running from northwest to southeast and more east than south. The plaintiff below testified that before passing behind the hedge, and while she had a view of the railroad, she looked up the track to see if any train was approaching, and she could see none, although she could see the track for a quarter of a mile or more -- possibly a mile; that the mules were brought to a walk, in order that s...