The Atchison v. Hill

• Decision Date: 11 July 1896
• Docket Number: 8678
• Citation: 45 P. 581,57 Kan. 139
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. ELLEN E. HILL, as Administratrix of the Estate of Charles W. Hill, deceased

45 P. 581

57 Kan. 139

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. ELLEN E. HILL, as Administratrix of the Estate of Charles W. Hill, deceased

No. 8678

Supreme Court of Kansas

July 11, 1896

Decided July, 1896.

Error from Jefferson District Court Hon. Robert Crozier, Judge.

AFFIRMED.

Judgment affirmed.

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

Hamble Brothers, and Waters & Waters, for defendant in error.

MARTIN C. J. All the Justices concurring.

OPINION

MARTIN, C. J.:

On August 8, 1890, Charles W. Hill died from the effects of injuries sustained at about 11 o'clock on the night of July 30, 1890, at a crossing of the railway of the plaintiff in error some two miles southwest of Nortonville, and about a mile before reaching his home, which was north of the crossing. At the May term, 1892, his widow, as administratrix, recovered a judgment against the plaintiff in error for $ 5,000, and this judgment is the present subject of review.

Hill left home in the morning, driving a horse which was hitched to a two-wheeled cart. He went first to Nortonville, with a view of going from there to Valley Falls. At Nortonville he met R. J. Eshom, who requested him to bring certain small castings belonging to a machine, and to leave them at his farm, in possession of a tenant. He got the castings at Valley Falls, and was last seen there about seven o'clock in the evening. He left the castings at Eshom's farm at some time between 10 and 11 o'clock, except a small piece, which was afterward found in his vest pocket. From Eshom's farm he went west to a road running north and south, which was the nearest way home, although not the best nor the most-traveled highway. The regular passenger-train from St. Joseph and Atchison to Topeka left Nortonville on time. At the place where the casualty occurred the train was running from east to west on a down grade and at a rapid rate of speed. About 800 or 900 feet east of the crossing the track curved to the north, and the train was hidden from view by the conformation of the ground. In driving north toward the crossing, however, a train might have been seen for a considerable distance at different points of view if it had been at certain places when those points were reached. South of and near the crossing there was a small bridge spanning a gully, along which willows and high weeds grew, and these tended to obscure the view of the train when near the track. The crossing was several feet above the level of the highway, and there was a steep ascent in crossing it. There was considerable evidence that the statutory signals were not given for the crossing, and the plaintiff in error relies chiefly upon the contributory negligence of Hill as a defense to the action.

There was no eye-witness to the casualty except Hill himself. Upon arriving at Valley Falls, the engineer discovered that the flagstaff had been struck by something; that it was in an inclined position, and a portion of it gone. This flagstaff was a few inches from the outside of the bunting beam, on the front portion of the engine. On arriving at Topeka the engineer made further examination, and found evidences on the left side of the engine that it had struck a horse. He then remembered a slight shock at the crossing in question, and at his request the conductor telegraphed back to the agent at Nortonville to get the section-foreman and a hand-car and go to the crossing to see what injury had been done. This order was obeyed, but nothing was found that night. The next morning, however, the section-men found that Hill's horse had been knocked a considerable distance and killed; that the cart was broken, and Hill had been thrown into the gully and badly injured. The section-men testified that, when asked how...