The Atchison v. Aderhold

• Decision Date: 05 June 1897
• Docket Number: 9828
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. GEORGE W. ADERHOLD, Administrator

49 P. 83

58 Kan. 293

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. GEORGE W. ADERHOLD, Administrator

No. 9828

Supreme Court of Kansas

June 5, 1897

Decided January, 1897.

Error from Jefferson District Court. Hon. Louis A. Myers, Judge.

Judgment reversed and remanded.

A. A Hurd, O. J. Wood and IV. Littlefield, for plaintiff in error.

Waters & Waters, for defendant in error.

OPINION

JOHNSTON J.

This was an action brought against the Atchison, Topeka &amp Santa Fe Railroad Company by George W. Aderhold, as administrator, to recover damages for the death of his son, John E. Aderhold, who was killed in a collision with a freight train. The casualty occurred at a highway crossing in the country, on a clear April day in 1892. At the point where he accident occurred, the highway runs north and south, and the track of the Railroad Company approaches the highway from the west, upon a curve. The country south of the crossing slopes to the north, so that there is a slight cut in the highway on the south of the railroad track, while on the north side the ground is about level with the track. In the approaches on each side of the track, and about nine feet from the rails and parallel with them, the Railroad Company placed plank culverts, about sixteen feet long, for the purpose of draining the track and completing the approaches to the crossing. These box culverts had been sunk in the ground on a level with the highway and covered with dirt. Planks had also been placed on either side of each rail in the manner required by the statute.

John E. Aderhold, who was between eighteen and nineteen years of age, had frequently traveled over the crossing and was familiar with the surroundings. On the day of the accident he was driving northward toward Valley Falls a team of horses attached to a farm wagon. Just before approaching the crossing, he was noticed by a witness to be driving on a slow walk, with his head bent forward, apparently looking in the bottom of the wagon. A view of the track could be had from the highway toward the east for some distance, except where it was obstructed by a house and barn which were near to the crossing. About noon of that day, a freight train, consisting of a locomotive and twelve box cars, approached from the west, on a down grade, and was running at the rate of from twenty-five to thirty miles an hour. When the horses had passed partly over the track, the locomotive ran into the front of the wagon, throwing the horses on one side of the track and Aderhold and the principal part of the wagon on the other, and instantly killing Aderhold and the horses. The house of J. W. Rose was about two hundred feet from the railroad crossing, and there, as has been stated, Aderhold was seen, with his head down, driving on a slow walk toward the crossing. No one saw him after that time except the men upon the train, who testified that, when they first saw him, he was driving at a walk, with his head down, but that as he approached the track he looked up and saw the train, and, partly rising upon his feet, attempted to urge the team over the track ahead of the locomotive.

The casualty is alleged to have been caused by the negligence of the Company in failing to build and maintain a safe and suitable crossing. The principal complaint is in regard to a hole in the culvert on the north side of the track, which, it is alleged, had been there so long that the Company knew, or should have known, of its existence. It was also alleged that the whistle of the locomotive was not sounded, nor the bell rung, on approaching the crossing.

The jury found in favor of the plaintiff below, but also found that the whistle was sounded eighty rods from the crossing, as the statute requires, and that when Aderhold was discovered by the engineer he applied the air-brakes and did all in his power to stop the train.

The negligence relied on to sustain the verdict is the defect in the crossing. If the box culvert is a part of the crossing which it was the duty of the Railroad Company to maintain then it must be held that the crossing was defective. In or near the wagon track there was a hole in the culvert, which some witnesses say was about six or eight inches square, and others, that it was about eighteen inches long and twelve inches wide. ...