The Atchison v. Cross

• Decision Date: 10 July 1897
• Docket Number: 9964
• Citation: 58 Kan. 424,49 P. 599
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. JOHN B. CROSS et al

49 P. 599

58 Kan. 424

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. JOHN B. CROSS et al

No. 9964

Supreme Court of Kansas

July 10, 1897

Decided January, 1897.

Error from Lyon District Court. Hon. W. A. Randolph, Judge.

Judgment affirmed.

A. A Hurd and Stambaugh & Hurd, for plaintiff in error.

Waters & Waters and Buck & Spencer, for defendants in error.

OPINION

ALLEN, J.

At Reading, a small town in Lyon County, the tracks of the Atchison, Topeka & Santa Fe Railroad Company are crossed by the three streets of the town which run north and south. There are three railroad tracks crossing these streets. The north one is a side-track called the passing track. Next is the main track, on the south side of which the station house is located. South of this is what is called the house track. The town of Reading is built on both sides of these tracks. At about three o'clock in the afternoon of December 10 1892, a freight train going west was run onto the passing track and stopped so as to obstruct the crossings of all three of these streets. There is testimony showing that this obstruction continued for twenty-five or thirty minutes, leaving no opening on either street for persons desiring to cross. After the freight train had been so placed on the passing track, a west-bound passenger train was run in behind it on the same track. In front of it were a number of empty cars, thus nearly filling the track between the switches. While these trains were standing on the side track, a passenger train going east passed them on the main line. Elmer Cross, a son of the plaintiffs, had been waiting on the north side of the passing track for twenty or twenty-five minutes to cross to the south side where his home was with his parents. He was a boy thirteen years of age. At about the time the east-bound train passed, he had started to go around the rear end of the freight train. The west-bound passenger train had backed onto the main line, and was proceeding west, with its steam cocks open emitting a cloud of steam, as the boy attempted to pass the rear end of the way car of the freight train. The freight train then commenced backing, without any signal by bell or whistle and without any guard on the rear end of the train, striking the boy and dragging him for a considerable distance along the track, killing him almost instantly. It appears that these crossings were frequently blocked by the defendant's trains for considerable periods of time; that persons desiring to cross were in the habit of climbing over, crawling under, and going around the trains; and that the employees of the Company, in charge of this particular train, knew that they were accustomed to do so.

It is insisted on behalf of the Railroad Company that its demurrer to the testimony offered by the plaintiffs should have been sustained, and that there can be no recovery on the facts disclosed. It is urged that Elmer Cross was a trespasser on the grounds of the Company, because the place where he was killed was not a street crossing or other place where he had a right to cross the defendant's right of way; that there is no evidence indicating a wilful or wanton injury, and that the defendant owed him no duty which it did not perform.

Under the facts disclosed in this case, we think the question was properly submitted to the jury as to whether there was not a license given to the public to pass around the company's trains while the street crossings were obstructed. It was certainly unreasonable for the defendant to keep its trains standing across all the streets of the town for so long a time and deny the public any opportunity to cross. It being known by the employees on the train that people were in the habit of going around its trains, it was incumbent on them to move the train with reference to such known practice, to give proper signals when starting, and to have some one at the rear end of the backing train to guard against accident. The testimony of the train hands discloses that it was understood by them to be the duty or the rear brakeman to be on the hind end of the way car when the train backed. There is testimony showing that no one was there. It is said that the evidence offered by the plaintiff does not show how Elmer Cross came to his death. None of the plaintiff's witnesses saw him when he was struck by the way car. The first they knew of...