The Atchison v. Hamlin

• Decision Date: 10 July 1903
• Docket Number: 13,241
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. MORTIMER HAMLIN et al

73 P. 58

67 Kan. 476

THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. MORTIMER HAMLIN et al

No. 13,241

Supreme Court of Kansas

July 10, 1903

Decided July, 1903.

Error from Reno district court; M. P. SIMPSON, judge.

STATEMENT.

THIS was an action brought by Mortimer and Annie Hamlin, parents of Reuben Hamlin, to recover damages by reason of the death of their son, who was struck by a locomotive of plaintiff in error and killed while in the employ of the company engaged in laying rails. The deceased was one of a company of thirty-five or forty men engaged in such work on the line a few miles west of Hutchinson. He was struck by the locomotive which was drawing an east-bound passenger train, known as No 2. The jury made the following findings:

"1. If the train strike Hamlin between Sherman and Partridge? A. Do not understand question.

"2. Is the railroad-track straight between Sherman and Partridge? A. Practically so.

"3. Is the railroad-track level between Sherman and Partridge? A. Very slight down grade eastward.

"4. Was Hamlin struck by train No. 2? A. Yes.

"5. Was No. 2 expected by the steel gang? A. Yes.

"6. Had the steel gang taken out every other spike before No. 2 came? A. They were taking out every other spike.

"7. Did the steel gang leave every other spike in the rails, so they might be held in place when No. 2 passed? A. They were so doing.

"8. Was No. 2 pulled by a large ten-wheel engine? A Yes.

"9. Did train No. 2 contain ten cars? A. Yes.

"10. At what rate of speed was train No. 2. scheduled? A Thirty-one miles per hour.

"11. At what rate of speed did it run when it reached the steel gang? A. Twenty-five to thirty-five miles per hour.

"12. Did the engine whistle at Partridge, five or six miles west of the steel gang? A. Yes.

"13. Was the whistle at Partridge heard by any one of the steel gang? A. Yes.

"14. Did the engine whistle at the road-crossing about one-half mile west of the steel gang? A. Yes.

"15. Did train No. 2 receive the 'high-ball' signal from foreman Devine at the time it approached the steel gang? A. Yes.

"16. Did the engineer answer the 'high-ball' signal by two blasts of his whistle? A. Yes.

"17. Did the engineer answer the signal by any blast of the whistle? A. Yes.

"18. How far west of the steel gang was the engine when it acknowledged the 'high-ball' signal? A. About 450 feet.

"19. How far could the whistle blasts of that engine he heard on the morning of October 14? A. About five miles.

"20. How far was Hamlin east of the engine when it acknowledged the 'high-ball' signal? A. About 750 feet.

"21. Did Devine, foreman, warn the men of the steel gang to clear the track before the train reached it? A. Yes.

"22. If he warned the men to leave the track, how many times did he do so before the train reached them? A. Once or twice.

"23. Did he shout loud enough for a man in the exercise of ordinary care and prudence to hear him the distance Hamlin was from him? A. No.

"24. How far east of Devine was Hamlin when he shouted for the men to clear the track? A. About 300 feet.

"25. Were there other men in the steel gang east of Hamlin when Devine warned the men to leave the track? A. Yes.

"26. Did any of the men east of Hamlin hear Devine warn the men to leave the track? A. No.

"27. Did all the men leave the track except Hamlin? A. Yes.

"28. Did the men east of Hamlin leave the track when Devine shouted? A. No.

"29. Did any of the men east of Hamlin hear the engine whistle before it reached the steel gang? A. No.

"30. Did Schmidt shout to Hamlin before the engine struck him and from a point about fifty feet east of Hamlin? A. No.

"31. Did Hamlin stand on the north side of the rail? A. Yes.

"32. How far from the rail did he stand? A. Evidence shows he stood very near the rail.

"33. Was he facing south? A. Yes.

"34. Did the track run from the northeast to southwest? A. Yes but more west than south.

"35. Did the engine strike him on the right side? A. Yes.

"36. Did the fireman see him before he was struck? A. Yes.

"37. Did he see him in time to stop or check the train? No.

"38. Was the bell ringing? A. Yes.

"39. Could the rumbling of the train be heard before it reached Hamlin? A. Yes.

"40. How far north would Hamlin have had to move in order to be clear of the engine? A. Cannot determine.

"41. Was Hamlin's hearing good? Was his eyesight good? A. Yes.

"42. Was his hearing and eyesight as good probably as that of the other men of the steel gang? A. Yes.

"43. Is there a ringing sound from steel rails when a heavy train is approaching? Yes.

"44. Can this sound be heard three or four hundred feet in front of the engine by one standing over or near the rail? A. Yes.

"45. Could Hamlin have moved out of the way had he noticed the train twenty-five feet distant? A. No evidence on this point.

"46. Could he have moved out of the way in a few seconds? A. Do not know from evidence.

"47. Is it probable that Hamlin misestimated the distance he was from the rail? A. No.

"48. Was there anything to prevent a man of ordinary care and prudence from seeing the train as it approached? A. Yes.

"49. Was there anything to prevent the man of ordinary care and prudence from hearing the train as it approached? A. Yes.

"50. If you answer the above question 'Yes,' please state what there was to prevent a man from hearing the train. A. Noise made by men at work on track between him and train.

"51. Was there anything to prevent Hamlin from hearing the blasts of the locomotive whistle as the train approached? A. Yes.

"52. Was there anything to prevent him from hearing the ring from the rails as the train approached? A. Yes.

"53. If there was anything to prevent him from hearing the blasts of the whistle, the rumbling of the train, or the sound from the rails, what was it? State the facts. A. The blowing of the wind and the noise made by the work of the other men.

"54. Did No. 2 pass through the steel gang on that morning in the usual and ordinary way? A. Yes.

"55. Did the foreman give signals to the men in the usual and ordinary way? A. No.

"56. Did all the men clear the track except Hamlin in the usual and ordinary way? A. No.

"57. How far could the rumbling of the heavy train be heard in front of the train on the morning of October 14, by a man standing near the track and paying reasonable attention? A. About 600 feet.

"58. Was Devine the head foreman of the steel gang? A. Yes.

"59. Did he perform his duty in the usual and ordinary way? A. Yes.

"60. Did the engineer perform his duty in the usual and ordinary way? A. Yes.

"61. Was the morning of October 14 a clear, bright morning? A. Yes.

"62. Was there anything on the right of way track to obscure an approaching train? A. Nothing except men at work.

"63. Did some of the men see the smoke five miles off? A. Yes.

"64. Did some of the men see the train itself two miles off? A. No.

"65. Did Devine call the Partridge gang back before he shouted to clear the track? A. He did.

"66. Did the men at the east end of the gang hear him call them back? A. No.

"67. How many trains passed the steel gang each day on the Santa Fe? A. From nine to twelve trains.

"68. How long had Hamlin been working with the steel gang? A. About one month.

"69. Was he familiar with the manner in which trains passed the steel gang? A. Yes.

"70. Was he familiar with the time when No. 2 passed east? A. Yes.

"71. Was No. 2 a heavy train? A. Yes.

"72. Was the 'high ball' a signal that the track was safe? A. Yes.

"73. Without it would there be danger of ditching the train in case of repairs? A. Yes.

"74. Is it probable that Hamlin either misestimated his distance from the rail, or misestimated either the proximity or speed of the approaching train and on that account was killed? A. No.

"75. Can his conduct be reasonably accounted for on any other kind of probability? A. Yes."

There was a general verdict, with judgment for plaintiffs below. A motion for judgment on the findings of the jury and one for a new trial were overruled. The railway company has prosecuted error.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

RAILROADS--Injury to Employee--Findings Inconsistent. An employee of a railway company, engaged with thirty-five or forty others in relaying steel rails in a manner not to interfere with the running of trains, was struck by a passing train and killed. He was standing at the time close to one of the rails. A recovery of damages was had against the railway company, based on a general verdict and findings of fact by the jury that the foreman in charge of the men did not give audible warning to the deceased of the danger, although he did so in the ordinary way; that the train's approach was obscured by intervening workmen; that the wind and noise prevented deceased from hearing the rumbling of the train or the whistle of the engine when it was one-half mile distant, and again when 750 feet away. The jury also found that a man standing near the track, giving reasonable attention, could have heard the rumbling of the train 600 feet away; that all the men left the track except the deceased; that from nine to twelve trains passed the workmen every day; that deceased was familiar with the time of the train that struck him; and that it was expected. Held, that the findings of the jury summarized above were inconsistent with one another, and that other findings referred to in the opinion were not supported by the evidence.

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

James McKinstry, and William M. Whitelaw, for defendants in error.

SMITH J. All the Justices concurring.

OPINION

SMITH, J.:

Summarizing those findings of the jury. which were most favorable to the plaintiffs below, it appears that the train was...