The Atchison v. Baker

• Decision Date: 12 December 1908
• Docket Number: 15,730
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. JOHN I. BAKER, as Administrator, etc

98 P. 804

79 Kan. 183

THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. JOHN I. BAKER, as Administrator, etc

No. 15,730

Supreme Court of Kansas

December 12, 1908

Decided July, 1908.

Error from Johnson district court; WINFIELD H. SHELDON, judge.

Judgment reversed and case remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. PERSONAL INJURIES--Pedestrian on a Railroad Track--Contributory Negligence--Wanton Negligence of Defendant. In an action to recover damages on account of an injury to a pedestrian resulting from a locomotive being driven along the public street of a city at an unlawful and dangerous rate of speed, with no signal being given of its approach and with no outlook being kept, the misconduct of those in charge of it may amount to such recklessness and wantonness as to cut off the defense of contributory negligence, although such employees did not know of the presence of the person injured, if to their knowledge the extent to which the street was used made an injury so probable that they must be deemed to have realized its imminence and to have refrained from taking steps to prevent it because they were indifferent whether it occurred or not.

2. PERSONAL INJURIES--Wanton Negligence--Knowledge of Plaintiff's Peril. In the trial of such an action an instruction that "wanton negligence is the failure of one charged with a duty to exercise an honest effort in the employment of all reasonable means to prevent a serious injury" is insufficient as a definition of conduct that would authorize a recovery regardless of contributory negligence. If the employees in charge of the engine did not know of the presence of the person injured it is essential that the jury be told what condition will supply the lack of actual knowledge.

3. EVIDENCE--City Ordinance--Proof of Publication. Inasmuch as the statute requires an ordinance to be published before it takes effect, and provides that to its entry in the ordinance book shall be appended a note stating the date of its publication, no other provision being made for preserving evidence of the fact of publication, if no notation with regard thereto is found in the proper place the ordinance is not admissible in evidence without other proof that it has been published.

William R. Smith, O. J. Wood, and Alfred A. Scott, for plaintiff in error.

J. W Parker, and C. L. Randall, for defendant in error.

OPINION

MASON, J.:

Sarah E. Baker was killed by a train of the Atchison, Topeka & Santa Fe Railway Company in a street of Olathe. An administrator recovered a judgment on this account, from which the company prosecutes error. The special findings, supplemented by the general verdict, may be deemed to have established these facts:

Mrs. Baker was 71 years old. She had had three slight strokes of paralysis, two manifesting themselves in her hand and one in her face, but her hearing and sight were in good condition for one of her age. Her home was in the middle of a block facing east upon a street sixty feet wide, along which ran two railroad tracks about twelve feet apart, equidistant from the middle of the street, the space between them being filled in with cinders and in common use by foot travelers. Most persons going along the street on foot, especially when it was muddy, used this ballasted portion. There was no sidewalk upon the side of the street where Mrs. Baker lived. Four feet from her fence there was a ditch, across which two planks were laid, reaching to the nearer track. The depot was a block and a half to the south. About three o'clock in the afternoon of the day of her death she left her house, crossed the planks over the ditch, and was struck and killed by a north-bound freight-train running on the nearer track at the rate of fifteen miles an hour, neither the bell nor the whistle having been sounded after the engine passed the depot. The train did not stop at the depot, but went through the town, in accordance with custom, with steam cut off, the grade permitting this. Every point on the path taken by the deceased from her fence to the track commanded an uninterrupted view of the track to the south for a distance of three-quarters of a mile. The engineer and fireman could have seen Mrs. Baker at the place where she was killed if they had been on the lookout, but not having kept a careful watch ahead of the engine they did not see her at all. A city ordinance limited the speed of trains to six miles an hour.

There seems to be nothing in the circumstances of the case that relieved Mrs. Baker from the duty of looking down the track before attempting to cross it. If she looked she must have seen the approaching train. Therefore, if her own negligence was not a contributing cause of her death, the reason must be that although she saw the train she so far misjudged its speed, while using ordinary diligence, as to suppose she had time to cross in safety before it would reach her. The plaintiff argues that its unusual, unlawful and dangerous rate, the failure to use the bell or sound the whistle, and the fact that the engine was not using steam, all tend to show that this was the real situation. But the jury seem not to have taken this view, for in answer to the question why she did not get out of the way of the train they answered that they did not know. However, they did find that the accident was due to the reckless and wanton misconduct of the employees in charge of the engine, and this finding, if it stands, renders the matter of contributory negligence immaterial. With regard to this the railroad company makes two contentions: (1) That the evidence did not justify submitting to the jury the question of recklessness and wantonness, and (2) that, if so, there was error in the instructions on the subject.

As the employees did not see Mrs. Baker, such recklessness and wantonness on their part as to render the company liable notwithstanding her contributory negligence can only be attributed to them upon the theory that to their knowledge the public street near the place of the accident was in such general use that they must be deemed to have understood that foot-travelers were likely to be there, and understanding this to have chosen to omit all warning of the approach of the engine, not necessarily because they affirmatively desired to kill or maim any one, but because they were entirely indifferent whether they did so or not. The running of a train at an excessive speed along or across a busy street of a populous city, without...