Roach v. The St. Joseph & Iowa Railroad Company

• Decision Date: 01 July 1895
• Court: Kansas Supreme Court
• Parties: HANNAH M. ROACH, as Administratrix of the Estate of Mitchell Roach, deceased, v. THE ST. JOSEPH & IOWA RAILROAD COMPANY

41 P. 964

55 Kan. 654

HANNAH M. ROACH, as Administratrix of the Estate of Mitchell Roach, deceased, v. THE ST. JOSEPH & IOWA RAILROAD COMPANY

Supreme Court of Kansas

July 1, 1895

Error from Brown District Court.

ACTION brought by Hannah M. Roach, as the administratrix of the estate of Mitchell Roach, deceased, to recover damages arising in consequence of his death, caused by the alleged negligence of the defendant Railroad Company. The court sustained the defendant's demurrer to the plaintiff's evidence. A motion for a new trial was overruled, and judgment given against the plaintiff for costs. She brings the case to this court. The material facts are stated in the opinion, filed October 5, 1895.

Judgment affirmed.

Grant W. Harrington, and F. M. Webb, for plaintiff in error.

M. A Low, and W. F. Evans, for defendant in error.

ALLEN J. All the Justices concurring.

OPINION

ALLEN, J.:

Mitchell Roach, the husband of the plaintiff in error, was killed on the line of railroad then operated by the defendant in error, at a private crossing on his farm in Brown county, on the 11th of January, 1888. The crossing where the accident occurred was on a private road extending from the highway to the plaintiff's residence, situated on the west side of the railroad-track. The railroad-track enters a cut within a very few feet north from the crossing, and curves to the northwest through the cut, a distance of about 900 feet. A short distance south of the cut the railroad passes over a trestle. From the highway the private road ascends all the way to the railroad-track, and a person coming in from that way cannot see the railroad-track, or a train on it, until it emerges from the cut, at any point further from the track than about 30 feet from the east rail. At this point, it is clearly shown by the testimony of all the witnesses who testified with reference to it, a view of the track for the whole length of the cut can be had, and a person in a wagon can see the track, and anything that may be upon it through the whole length of the cut. A person on the public highway near the entrance to Roach's place cannot see a train of cars while in the cut. The accident occurred in the afternoon, and was witnessed by the plaintiff and H. G. Reed, a neighbor, who lived across the public road from Roach's place. The testimony shows that the deceased, Mitchell Roach, drove into the private road from the highway with a team of mules, and a lumber-wagon in which he was standing; that the mules walked at a pretty brisk rate, without stopping, until their forefeet were upon or near the east rail of the railroad-track, when Roach pulled back and endeavored to stop them, and then attempted to jump from his wagon. The mules sprang forward, and the engine of a train coming out of the cut from the north struck the front wheels of the wagon, threw him out, and killed him. It is charged that the defendant was negligent in failing to give any signal, either by whistling or ringing a bell, before reaching the crossing. On the part of the railroad company it is contended that there was no obligation to whistle or ring when approaching this private crossing.

It clearly appears from the evidence that this was a very dangerous crossing, and we think it was a question proper to be left to the jury whether, in the exercise of reasonable care, signals should have been given to warn persons at the crossing of an approaching train. (Railroad Co. v. Hague, 54 Kan. 284.) The evidence shows that no signal was given until it was too late to be of any service. The court sustained a demurrer to the plaintiff's evidence.

On the question of the negligence of the defendant there was some evidence to go to the jury, but we have to inquire further whether contributory negligence on the part of the deceased is shown. It appears that the railroad had been in operation for several years prior to the accident, and that the deceased had lived there ever since its construction. The train which caused his death was a regular passenger-train, on time, and running on a time-schedule that had been in force for several months. The deceased was certainly as familiar with the surroundings of the crossing and with its dangers as were the employees of the company. As this private way was the usual approach from the public road to his house and often used by him, he is certainly chargeable with knowledge of its dangers.

The evidence of H. G. Reed shows that he saw Mr. Roach come along the public road from the north, standing up in a lumber-wagon, driving a span of mules; that he watched him all the way till he got to the railroad crossing; that just about the time the mules were stepping over the east rail he saw him pull back on his lines, and just about the same instant the engine struck the wagon, and he was killed; that he was driving on a walk at a pretty good gait all the time; that he could not see that the mules were frightened.

Mrs Roach, the plaintiff, testified that when she was at the well, north from their house, she looked under the trestle and saw her husband enter the place off the public road. She then started toward the house, and when she got a little over half-way up the hill, she heard the train, and about the same instant saw it come out of the cut; that at just about the same time she saw her husband in the act of coming on the track; that the mules had just got their front feet across the rail; that she then hallooed and clapped her...