The Atchison v. Hayes
| Decision Date | 06 February 1909 |
| Docket Number | 15,605 |
| Court | Kansas Supreme Court |
| Parties | THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. ANNA L. HAYES, as Administratrix, etc |
Decided January, 1909.
Error from Wilson district court; LEANDER STILLWELL, judge.
Judgment affirmed.
William R. Smith, O. J. Wood, and Alfred A. Scott, for plaintiff in error.
J. S Claiborne, D. J. Sheedy, and T. J. Hudson, for defendant in error.
The plaintiff in error in its brief presents but two questions in this case.
First it is contended that the evidence showed that the road upon which the deceased was traveling was not a public highway. We have examined the evidence and think it shows the road was a public highway. The record of the county clerk shows that a road at this point was regularly petitioned for; that viewers were appointed and duly met with the surveyor, who surveyed the proposed road, and in their report to the county commissioners, to which was attached a copy of the survey, they recommended the laying out of the road. The commissioners adopted the report, and ordered the road laid out and opened. The evidence also shows that the road was worked under the direction of the township officers at the very point where the accident occurred. The only thing upon which to justify the question as to the existence of the highway is that some years after the laying out of the road, which was several miles long, there was a dispute as to its location on a portion of the route, and, at the request of interested parties, the county commissioners ordered a resurvey of the road so far as was necessary to determine the disputed line. This resurvey was made and extended only to the low-water line at the east bank of the Verdigris river. The accident occurred on the part of the road laid out and extending west of the river. This resurvey in no way annulled the original laying out and opening of the road. There was little travel on the road west of the river, but it is shown to have been continuous from the time the road was laid out and opened.
Second it is contended that the evidence shows that the deceased was guilty of contributory negligence, as a matter of law, in not stopping, looking and listening for an approaching train before driving upon the crossing. The evidence of the only eye-witness to the accident was that she did not know whether he stopped, looked and listened or not, but on...
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