The Atchison v. Holloway

• Decision Date: 11 March 1905
• Docket Number: 14,020
• Citation: 80 P. 31,71 Kan. 1
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. JAMES M. HOLLOWAY

80 P. 31

71 Kan. 1

THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. JAMES M. HOLLOWAY

No. 14,020

Supreme Court of Kansas

March 11, 1905

Decided January, 1905.

Error from Lyon district court; DENNIS MADDEN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS--Injury to Passenger. When a person enters a railroad station and purchases a ticket, intending to take a passenger-train soon to arrive, he acquires the status of a passenger, and it becomes the duty of the railroad company to exercise reasonable care to provide him a safe approach to the train and reasonable time and opportunity to get on board.

2. RAILROADS--Negligent Running of Trains at Station. The running of a freight-train between a station and a passenger-train, thus blocking the access of passengers to the passenger-train during the time it stops at the station is negligence as to waiting passengers who suffer injury by reason of insufficient opportunity to get on board.

3. RAILROADS--Boarding a Moving Train. An attempt, of a passenger to board a moving train, although attended with some danger, is not, under all circumstances, contributory negligence.

4. RAILROADS--Obvious Danger--Contributory Negligence. If the speed of the train and the difficulties in the way of boarding it are so obviously dangerous that a person of ordinary prudence would not attempt to get on the train, a passenger who makes the attempt and is injured is guilty of such contributory negligence as will bar a recovery.

5. RAILROADS--Contributory Negligence Held a Question for the Jury. In this case an injured passenger--a strong, able-bodied man, accustomed to getting on and off cars--attempted to board a train moving at the rate of about four miles an hour, which he was waiting to take but which he had not been afforded a reasonable opportunity to board while it was stopped. The day was clear, and the ground where he made the attempt was smooth. Held, that it cannot be said, as a matter of law, that the attempt was so obviously dangerous as to constitute contributory negligence, and that whether it was such negligence was a proper question to leave to the jury.

6. RAILROADS--Proof of Speed of Trains. The speed of a train may be shown by an ordinary witness who has given some attention to the running of trains and has a knowledge of time and distance. The inexperience of a witness in timing the speed of trains, and the fact that he has given little attention to the matter, goes to the weight, rather than to the admissibility, of his testimony.

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

Kellogg & Madden, Frank P. Walsh, and E. R. Morrison, for defendant in error.

JOHNSTON C. J. All the Justices concurring.

OPINION

JOHNSTON, C. J.:

James M. Holloway sued to recover damages for injuries sustained while attempting to board a train of the Atchison, Topeka & Santa Fe Railway Company at Strong City. He purchased a ticket and awaited the arrival of a passenger-train upon which he intended to take passage, but about the time the passenger-train was expected a freight-train pulled in on the track next to the station, and while it was passing the passenger-train arrived on a track beyond the one occupied by the freight-train. The passenger-train only stopped a brief time, and when the freight-train had passed the station the passenger-train was moving out. Holloway ran around the end of the freight-train and undertook to board the slowly moving passenger-train, but, his foot slipping into an opening in the back of the step of the car, he lost his balance, and was thrown under the wheels of the car and badly hurt.

The negligence alleged against the railroad company was that it did not provide safe means of access to the train, or sufficient time and opportunity for plaintiff to board it. The running of the freight-train between the waiting-room in which Holloway was seated and the passenger-train, thus concealing that train and blocking the approach to it, the failure to stop the passenger-train a sufficient time to permit passengers to board it, the omission to give notice of its arrival and the leaving of an unprotected opening in the steps of the car are mentioned as specific grounds of negligence. It is alleged that, as a consequence of the railroad company's negligence, Holloway was thrown down, dragged over a hundred feet, his arm crushed so that amputation became necessary, and his right foot and ankle permanently crippled. The answer of the railroad company was that the injuries were in no way the result of its negligence, but were in fact caused by plaintiff's want of care in getting on a train while it was in motion. The verdict of the jury and the answers to special questions were in favor of Holloway.

The principal contention is that Holloway's evidence showed that the negligence of the railroad company was not the proximate cause of the injuries, but that they were due to the contributory negligence of himself, and that, therefore, the demurrer to his evidence should have been sustained.

The testimony offered in his behalf tended to show that he was fifty-six years old, in good health, strong and able-bodied; that he was engaged in traveling for a mercantile company and had had much experience in boarding and alighting from trains; that after buying his ticket he seated himself at a window of the waiting-room to watch for the coming train; that while there a freight-train came through on the track next to the depot, and that when his attention was called to the fact that the passenger-train was in he hurried around the back of the freight-train, and when he reached the passenger-train it was moving. He had two grips with him which he threw upon the platform of the baggage and combination car. One of the grips remained there and the other fell to the ground. He picked up the light grip and undertook to board the train, catching the hand-rail on the end of the following coach. He attempted to step on the train when it was running about four miles an hour, but his foot slipped into the opening in the step, his hand was jarred loose, and he fell under the car and suffered the injuries which have been mentioned. His plight was seen by the conductor, who pulled the cord and stopped the train, but not until Holloway had been dragged about 100 feet. According to the testimony, the stop made by the passenger-train was very brief--placed by some witnesses at from thirty to sixty seconds, and the conductor himself fixed the length of time at from thirty to forty-five seconds. It appears that several passengers who intended to board that train were unable to do so before the second stop, which was made because of the injury to Holloway. He undertook to get on the train after it had started, but he said it was moving slowly, and that he had frequently boarded cars which were moving much more rapidly. Measuring the testimony by the rule applicable under a demurrer to evidence, we think it was sufficient to carry the case to the jury on the alleged negligence of the railroad company, as well as on the contributory negligence of Holloway. (Brown, Adm'r, v. A. T. & S. F. Rld. Co., 31 Kan. 1, 1 P. 605; Wolf v. Washer, 32 id. 533, 4 P. 1036; Christie v. Barnes, 33 id. 317, 6 P. 599; K. C., Ft. S. & G. Rld. Co. v. Cravens, 43 id. 650, 23 P. 1044.)

When Holloway entered the station and purchased a ticket with the intention of taking the coming train he acquired the status of a passenger, and was entitled to protection as such. It was the duty of the company to exercise reasonable care to provide him a safe approach to the passenger-train, a reasonable opportunity to get on board, and a reasonable time to do so. The running of a freight-train between the waiting-room of the station and the passenger-train, thus blocking the passage to the passenger-train during the entire time it stopped at the station, was manifest negligence. If for any reason, the passing of the freight-train on the track next to the station was a necessity, the passenger-train should have been held a sufficient time after the way had been cleared to afford passengers an opportunity to get on board. The freight-train, however, blocked access to the passenger-train during the short time that the latter stopped at the station. It is the duty of a passenger to be reasonably alert and prompt in boarding a train, but considering that the freight-train concealed the coming passenger-train and blocked the passage from the station to it we cannot say that Holloway was not reasonably prompt and diligent in his efforts to get on board the cars. The stop of the passenger-train was very brief--altogether too much so, considering the surrounding...