The Atchison v. Henry

• Decision Date: 11 July 1896
• Docket Number: 8503
• Citation: 45 P. 576,57 Kan. 154
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. ALLIE MAY HENRY

45 P. 576

57 Kan. 154

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. ALLIE MAY HENRY

No. 8503

Supreme Court of Kansas

July 11, 1896

Decided July, 1896.

Error from Osage District Court Hon. William Thomson, Judge.

REVERSED AND REMANDED.

STATEMENT BY THE COURT.

ON June 23, 1891, Frank B. Henry, a locomotive engineer in the service of the Atchison, Topeka & Santa Fe Railroad Company, came to his death in Ellsworth county by reason of a collision of his engine with a Deering harvester-binder which became fast upon the highway crossing on the section line between sections 31 and 32, in township 17, range 8. The crossing consisted of six planks, 14 feet long, between 11 and 12 inches wide and 2 1/2 to 3 inches thick, one being placed on the outside of each rail, and four between the rails. The only evidence that the highway had been regularly laid out was a copy from the record of the petition for opening the road, with the names of the petitioners, and an order of the board of county commissioners, of date July 8 1879, stating that, after examining the petition and finding it to be in conformity to law, the clerk was directed to notify the township trustees to have the road opened; and this was certified by the county clerk to be a true and correct transcript from the road records, and containing all that appeared on the same with reference to laying out and establishing said road. Chapter 67, Laws of 1883, legalized all highways in Ellsworth county established and located by the board of county commissioners prior to January 1, 1883 and made the records and certified copies thereof competent evidence of the existence and validity of such highways.

Edmund Stredder, a farmer residing north of the railroad and owning land on each side of it, started from his home driving on the harvester-binder, with a view of cutting wheat on the south side of the railroad. The machine was 10 feet and 4 inches wide from the outside of the master wheel to the outside of the grain wheel. It cut a swath seven feet wide, and three horses, hitched abreast at the right or master-wheel end of the machine, were required for use in the harvest field, and Stredder started with the horses so hitched. When he came to the crossing, he expected the horse on the right hand or off side to walk outside of the plank crossing, but, in going over, this horse crowded to the left to obtain a foothold on the planks, and this had the effect of so turning the machine and pushing it over, that the grain wheel was thrown so far east that it missed the plank, and struck against the north rail of the track, and the sickle bar was caught in some way under the rail. He urged his horses forward, but could not disengage the grain wheel and the sickle bar from the track and, seeing the train coming from the east about 1,000 feet away, he gave the engineer a signal to stop, which appeared to be answered by two sharp blasts of the whistle, and the engineer applied the air-brakes to the locomotive and tender, and the conductor set the brake on the coach, and when about 435 feet from the crossing the. engine was reversed; but these checks were insufficient. to stop the train, and the locomotive struck the harvester-binder with great force. The pony trucks seemed to have been derailed by the sickle bar getting under them, and the drive wheels followed, breaking one of the rails, and the locomotive and the tender were turned over on the left hand or south side of the track where the embankment was about six feet high, and the engineer and the fireman were so scalded that they died in a few hours. Following the locomotive and tender were a box car, a coal-car loaded with nut coal, and a combination coach. The two former were turned over, but the coach only partially left the track. Jack McDonald, the head brakeman, when about 1,750 feet from the crossing, was sitting on top of the box car next to the tender, and saw Stredder driving up to the track, and soon thereafter he heard the whistle; but he seems to have taken no further notice until about the time the engine was reversed, when, seeing the machine on the track, he ran back on the top of the car, jumped down upon the coal-car, and succeeded in saving himself, but without setting the brake on either car. Although there was no allegation of the incompetency of any of the crew, the court allowed such evidence as to McDonald, notwithstanding the objection of the railroad company. In a general instruction, however, the court directed the jury entirely to disregard any and all evidence of the competency or incompetency of any of the train crew. The nineteenth instruction was to the effect that the highway between sections 31 and 32 was legally established, and concluded as follows:

"If you believe from the evidence that the wreck occurred on that highway, over which defendant constructed its railroad after the highway was legalized in 1883, then I further instruct you that it was not only bound to restore it to a state not necessarily to impair its usefulness, but was also bound to construct and keep in repair its plank crossing over the same; and, if the binder became fast by reason of the failure of the defendant to perform either of these duties, the defendant is liable for all the injuries resulting therefrom, provided the deceased was not himself at fault directly contributing to the same."

The next day, after the jury had retired to consider of their verdict, they came into court and the following proceedings took place:

"Juror. We want to know the meaning of instruction No. 19. Judge. Is that the one? Juror. Yes, sir. Where the sticking point is whether they were bound to put up anything more than the 14-foot plank. If the court can tell us whether they were bound to put more than the 14 feet we can agree. Some contend they have to grade it all up, and some contend that it is only 14 feet. We want to know the meaning of the feet -- simply whether it should be graded up 14 feet, or whether it should be graded up 50 feet. Judge. I shall attempt, gentlemen, to explain that when you come back at half past 7 o'clock."

At that time the court further instructed the jury in writing as follows:

"You have asked of the court, gentlemen of the jury, some explanation as to the meaning of instruction No. 19, in regard to the question as to the duty of a railway corporation, where its road crosses and is constructed over a legal public highway, and you have been directed that it was not only bound to restore it to a state not necessarily to impair its usefulness; and you are now further directed that if it is necessary so as not to impair the usefulness of the highway that it should be restored to its former state the whole width of the highway, outside as well as between the rails of the track, then the railway corporation was bound so to do; and you are also directed that a railway corporation, where its track crosses and was constructed over such highway, is bound to build and to keep in repair its plank crossing over the same, and that is the kind of crossing mentioned and described in its construction, in instruction No. 22, already given you. Both of these duties are obligatory upon the railway corporation in both these cases, namely, to restore the highway to its former state or to such state as not necessarily to impair its usefulness and to build and keep in repair the plank crossing mentioned."

Instructions 7 and 10 were intended to elucidate the distinction between the different degrees of negligence as applicable to the case, and both seem to direct a comparison of the negligence of the railroad company and that of the engineer. After the jury had been in consultation for the period of two days, the court amended these instructions by striking out the words directing a comparison of the negligence. Instructions 30 and 41 were respectively as follows:

"30. If you should find from the evidence in this case that the deceased, Frank B. Henry, as engineer in the employ of defendant road, had ridden upon and over this crossing on an engine...