Tennis v. Interstate Consol. Rapid Transit Ry. Co.

• Decision Date: 07 February 1891
• Citation: 25 P. 876,45 Kan. 503
• Parties: HENRY N. TENNIS, as Administrator of the Estate of John S. Tennis, deceased, v. THE INTER-STATE CONSOLIDATED RAPID TRANSIT RAILWAY COMPANY
• Court: Kansas Supreme Court

25 P. 876

45 Kan. 503

HENRY N. TENNIS, as Administrator of the Estate of John S. Tennis, deceased, v. THE INTER-STATE CONSOLIDATED RAPID TRANSIT RAILWAY COMPANY

Supreme Court of Kansas

February 7, 1891

Error from Wyandotte District Court.

THE facts are stated in the opinion.

Judgment affirmed.

Sherry & Hughes, for plaintiff in error.

Warner Dean & Hagerman, and N. H. Loomis, for defendant in error.

GREEN C. All the Justices concurring.

OPINION

GREEN, C.:

This action was brought by Henry N. Tennis, as administrator of the estate of John S. Tennis, deceased, in the district court of Wyandotte county, to recover the sum of $ 10,000 damages on account of the alleged negligent killing of the decedent. The record discloses that John S. Tennis was killed under the following circumstances: On the afternoon of August 30, 1887, he was walking on the railroad track of the defendant in a westerly direction, in Kansas City, some two hundred feet from a coal chute, where engines took on coal. At the point in question, there was a double track located upon a fill, the south side of which sloped downward some twenty or thirty feet to a stream called Jersey creek; the other side of the fill was a few feet above the natural surface of the ground. The general direction of the road was east and west, but west of the coal chute some distance the railroad curved toward the north. Just prior to the fatal accident, the decedent was observed walking westward upon the track used for east-bound trains; a west-bound train was standing at the coal chute taking on a supply of fuel; it appears that the deceased was within thirty or forty feet of this train when it was coaling; about the time he reached a point two hundred feet west of the coaling place, an east-bound train came around the curve in front of him; in the meantime, the train which had been standing at the coal chute started westward; to avoid the eastbound train, the deceased stepped from the south to the north track, and had not taken more than two or three steps before he was struck and instantly killed by the train going west. The train was running at the rate of twelve miles an hour. The road had been in operation something over a month before the accident. It was admitted, upon the trial, that the accident complained of did not occur in a public street of the city, and no claim was made that the rate of speed at which the train in question was running was in violation of any ordinance.

The case came on for trial on the 23d day of March, 1888, before the court and jury, and upon the conclusion of the evidence for the plaintiff, the defendant interposed a demurrer to the evidence, on the ground that no cause of action had been proved, which was sustained by the court; and the plaintiff below brings the case to this court, alleging that the trial court erred in sustaining the demurrer to the evidence, and also in sustaining an objection of the defendant to a question asked one of the witnesses, by the plaintiff, as to what statement the engineer made in regard to the accident.

The first and principal contention of the plaintiff in error is, that the court erred in sustaining the demurrer to the evidence; that where the injury occurred was a sort of thoroughfare, where men, women and children had been in the habit of walking; that the train on the north track was being run at a wanton and reckless rate of speed, and that the decedent was run over and killed without any notice or warning whatever. The defendant in error insists that the testimony of the plaintiff showed that Tennis was a trespasser upon the defendant's right-of-way, and that the negligence of the deceased was the direct cause of his death; that there is nothing in the evidence to show willfulness or wantonness upon the part of the railway company, and that the demurrer was properly sustained.

Was the decedent killed under such circumstances as to indicate that his death resulted from negligence? If so, the demurrer should have been overruled. The law of this jurisdiction has been settled, that a railroad company has the exclusive right to occupy, use and enjoy its railway track, and such exclusive right is absolutely necessary to enable it to properly perform its duties, and any person walking upon a track of a railway, without the consent of the company, is held in law to be there wrongfully, and, therefore, to be a trespasser; and, in case of an injury happening to such person so trespassing upon it, from the movement or operation of the cars of the company over it, he is without remedy, unless it be proved by affirmative evidence that the injuries resulted from culpable negligence after the deceased was noticed upon the track. ( Mason v. Mo. Pac. Rly. Co., 27 Kan. 83.) We do not think the evidence indicated that the public had acquired any right to the railroad track, as a thoroughfare, with the consent of the railway company. The road had been in operation but a short time, and it could hardly be contended that the use of the track had been acquired by prescription. The settled policy of the law is to make the track of a railroad, which is exclusively the roadway of the company, and upon which cars are operated by steam and kindred agencies, clear of all obstruction which might impede the free and exclusive use of the track, for the purpose for which it was constructed. There seems to be sound reason for this policy. It is stated by Mr. Justice Paxson, in the case of Mulherrin v. D. L. & W. Rld. Co., 81 Pa. 366:

"We hold these corporations to a strict line of responsibility whenever passengers are injured by accidents to their trains. It follows that we should be equally emphatic as to their control of their tracks. Except at crossings, where the public have a right-of-way, a man who steps his foot upon a railroad track does so at his peril. The company have not only a right-of-way, but such right is exclusive at all times and for all purposes. This is necessary, not only for the proper protection of the company's rights, but also for the safety of the travelling public. It is not right that the lives of hundreds of persons should be placed in peril for the convenience of a single foolhardy man who desires to walk upon the track. In England it is a penal offense for a man to be found...