The Atchison Topeka & Santa Fe Railroad Company v. Hague

• Decision Date: 10 November 1894
• Court: Kansas Supreme Court
• Parties: THE ATCHISON TOPEKA & SANTA FE RAILROAD COMPANY v. W. J. HAGUE

38 P. 257

54 Kan. 284

THE ATCHISON TOPEKA & SANTA FE RAILROAD COMPANY v. W. J. HAGUE

Supreme Court of Kansas

November 10, 1894

Decided July, 1894.

Error from Johnson District Court.

ACTION by Hague against the Railroad Company to recover damages for bodily injuries. Judgment for plaintiff for $ 300. The defendant comes to this court. The opinion herein, filed November 10, 1894, states the material facts.

Judgment reversed and cause remanded.

A. A Hurd, and Robert Dunlap, for plaintiff in error:

1. The court erred in permitting testimony to the effect that on the special train no whistle was sounded at another crossing than the one at which the injury occurred.

It was wholly immaterial in this case whether any whistle was sounded at this second crossing or not. The accident did not occur there. The negligence of the defendant is alleged to be its failure to whistle for the crossing at which the accident occurred. It was wholly immaterial, therefore, whether the whistle was sounded for any other crossing. The engineer may have been negligent in failing to whistle at some other crossing; still, that would be immaterial. Such fact would not show that he had failed to whistle at the crossing in question. See A. T. & S. F. Rld. Co. v. Townsend, 39 Kan 116.

2. The court erred in giving and refusing certain instructions.

Any less rate of speed than that used would not have prevented the accident. One witness for the plaintiff testified that he guessed the rate of speed was 50 miles an hour. This was not even excessive. In many countries in Europe trains are operated at the rate of 90 miles an hour. L mited trains in the east make an average of 60 miles an hour. In any event so far as the rural districts are concerned, railroad companies must have a discretion in determining the speed at which their trains are to be operated, and a jury cannot fix the maximum rate. Childs v. Penn. Rld. Co., 24 A. 341; McKonkey v. C. B. & Q. Rld. Co., 40 Iowa 205, 206; Goodwin v. C. R. I. & P. Rly. Co., 11 Am. & Eng. Rld Cas. 460; Railroad Co. v. Ritchie, 102 Pa. 425; Powell v. Mo. Pac. Rly. Co., 76 Mo. 80; Warner v. Railroad Co., 44 N.Y. 465, 470; Telfer v. Railroad Co., 30 N.J.L., 188, 192; Flatters v. Railroad Co., 35 Iowa 191.

It was wrong for the court to suggest to the jury that they might find, under the evidence, any wantonness. The instruction was misleading. See K. P. Rly. Co. v. Peavey, 29 Kan. 180.

The court erred in refusing to give the sixth instruction requested by the defendant.

See, also, Bohan v. H. L. & S.W. Rld. Co., 61 Wis. 391, same case, 19 Am. & Eng. Rld. Cas. 276; Calhoun v. N. C. & H. Rld. Co., 66 N.Y. 133; Seibert v. Erie Rly. Co., 49 Barb. 584; Haynes v. St. L. K. C. & N. Rld. Co., 71 Mo. 638; Ellis v. G. W. Rld. Co., L. R. 9 C. P. 551; Tulley v. F. Rld. Co., 134 Mass. 499; same case, 14 Am. & Eng. Rld. Cas. 682; C. B. & Q. Rld. Co. v. Damarel, 81 Ill. 452.

The accident did not happen in a city or village, but at a country highway crossing. The duty of the railroad company in the premises has been fixed by the legislature. Gen. Stat. 1889, P 1213.

See, also, N. Y. L. E. & W. Rly. Co. v. Leaman, 23 A. 691; C. B. & Q. Rld. Co. v. Dougherty, 110 Ill. 521; C. & A. Rld. Co. v. Robinson, 106 id. 106; Beisiegel v. N. Y. C. Rld. Co., 40 N.Y. 9; Grippen v. N. Y. C. Res. Co., 40 id. 34, 39, 40; Heaney v. Railroad Co., 112 id. 122; Dyson v. N. Y. & N. E. Rld. Co., 17 A. 137; Haas v. Railroad Co., 47 Mich. 406; Railroad Co. v. Lee, 68 Ill. 576; Railroad Co. v. Harwood, 80 id. 88; Groves v. Railroad Co., 67 Me. 100.

The rumble of plaintiff's wagon would drown the sound, and it is a singular fact that, while the plaintiff claims he did not hear the rumbling of this train, one of his witnesses, who was quite a distance from the railroad track, sitting at the post office in the city of De Soto, heard the rumbling of this train, and therefore his attention was directed to it. In a case like this, therefore, the court must say that it was the duty of the plaintiff to stop, so that he might listen more attentively, and make a better and more vigilant use of his sense of hearing and of sight. This is the rule generally adopted by the courts.

Mynning v. D. L. & N. Rld. Co., 31 N.W. 147; Seefeld v. C. M. & St. P. Rly. Co., 35 id. 278; Shufelt v. F. & P. M. Rld. Co., 55 id. 1013; Gunn v. W. & M. Rly. Co., 35 id. 281; Penn. Rld. Co. v. Beall, 73 Pa. 504; Bellefontaine &c. Rld. Co. v. Hunter, 33 Ind. 355; Railroad Co. v. Ritchie, 102 Pa. 425; B. & O. Rld. Co. v. Hobbs, 19 Am. &. Eng. Rld. Cas. 337, 340; Wakelin v. L. & S.W. Rld. Co., 29 id. 434; K. P. Rly. Co. v. Brady, 17 Kan. 384, 385; Beach, Contr. Neg., 2d ed., § 39.

3. The verdict is not sustained by sufficient evidence. The motion for a new trial should have been granted, because the evidence is not sufficient to sustain the verdict. Conceding that there was evidence tending to show that there was a failure to give signals, and that upon the question of the defendant's negligence there was sufficient to go to the jury, the evidence still clearly shows that the plaintiff was guilty of contributory negligence.

J. W. Parker, and S. T. Seaton, for defendant in error:

1. In support of the first assignment of error, counsel cite A. T. & S. F. Rld. Co. v. Townsend, 39 Kan. 116, but upon examination of that case we are unable to see that it has any application to this case. This case falls squarely within Bower v. C. M. & St. P. Rly. Co., 21 N.W. 536. In that case the court below overruled an objection to evidence that a bell was not rung or a whistle blown at a crossing three miles distance from the crossing at which the accident occurred. The supreme court of Wisconsin held that the evidence was admissible. So, when the rate of speed of a train at the place of accident is in question, evidence of the speed of the same train some distance away is relevant. Savannah &c. Rld. Co. v. Flanagan, 9 S.E. 471.

2. Counsel for plaintiff in error complain of "error in the instructions." We shall first notice the complaint which they make that the court below erred in refusing to give an instruction asked for by them touching the weight of positive and negative evidence. And first, we think it a just criticism of this instruction that it is argumentative in form, and was therefore properly refused. Secondly, as presented, it ignored all modifying circumstances, and, notably, the circumstances of relative opportunity and credibility; and for this reason there was no error in refusing the instruction. K. C. Ft. S. & G. Rld. Co. v. Lane, 33 Kan. 702. Thirdly, the instruction, apart from the objections just mentioned, does not state the law correctly. See Smith v. Railroad Co., 19 Mo.App. 120.

3. The court gave certain instructions at the request of the plaintiff below, and refused certain other instructions requested by the defendant below.

As we understand the rule, an instruction is to be considered as a whole, and not in fragments (K. C. Ft. S. & G. Rld. Co. v. Kelley, 36 Kan. 655, 660), and when this is done there is an explicit statement that the company was only bound to exercise ordinary care.

We cannot believe that the legislature, in enacting this statute requiring a whistle to be sounded at least 80 rods from a highway crossing, ever intended to fix upon that as the maximum of duty of railroads at such crossings. Nay, it is more rational, and more in accord with the dictates of justice, humanity, and good sense, to construe the statute as fixing the minimum obligation of railroads in this respect. We submit that, under the circumstances of this case, it was properly left to the jury to say what care and precautions, if any, besides blowing the whistle should have been taken. See Indianapolis &c. Rld. Co. v. Stables, 62 Ill. 313, 317. The following cases also hold that mere compliance with the statute does not relieve the company from liability, if otherwise negligent: Linfield v. Old Colony Rld. Co., 10 Cush. 562; Bradley v. B. & M. Rld. Co., 2 id. 539; Elliott, Roads & H., 606; Shaber v. St. P. M. & M. Rld. Co., 9 N.W. 575, 577; Richardson v. N. Y. C. Rld. Co., 45 N.Y. 846; Webb v. Portland &c Rld. Co., 57 Me. 134; Railroad Co. v. Thompson, 62 Ala. 494.

It is doubtless true that no rate of speed is negligence per se, but it is equally true that the speed at which a train is run over a crossing may be so great as to be negligent as a matter of fact. See Mo. Pac. Rly. Co. v. Johnson, 44 Kan. 664; Indianapolis &c. Rld. Co. v. Stables, 62 Ill. 313; Frick v. St. L. &c. Rld. Co., 75 Mo. 595; Marcott v. Marquette &c. Rld. Co., 47 Mich. 1; 4 Am. & Eng. Encyc. of Law, p. 931.

4. The jury was told in the fifth instruction that the "plaintiff had a right to presume that in handling their trains the railroad company would act with appropriate care and that all reasonable and necessary signals would be given," and that if the proper signals and precautions were omitted, that fact was to be considered in determining whether or not the plaintiff did exercise the requisite degree of care. But the jury was also told explicitly that such negligence on the part of the company would not excuse the plaintiff from exercising due care to avoid injury, and that he was bound, notwithstanding, to make use of his senses to ascertain if there was present danger in crossing. Other instructions given by the court fully stated plaintiff's obligation to look and listen, etc., as he approached the crossing. This instruction is fully justified by the authorities.

See Donohue v. Railroad Co., 91 Mo. 357; same case, 28 Am. &amp Eng. Rld. Cas. 623; Petty v. Railroad Co., 88 Mo. 306; Hart v. Devereux, 41 Ohio St. 565; Chicago &c. Rld. Co. v. Hedges, 105 Ind. 398; Shearm. & R. Neg. (4th ed.), §§ 92, 482, and ...