The Atchison v. Margaret Withers. The Atchison
| Decision Date | 07 July 1904 |
| Docket Number | 13,681. 13,756 |
| Citation | 69 Kan. 620,77 P. 542 |
| Court | Kansas Supreme Court |
| Parties | THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. MARGARET WITHERS. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. OTIS DEWESE, as Administrator, etc |
Decided July, 1904.
Error from Jefferson district court; MARSHALL GEPHART, judge.
Judgment reversed.
SYLLABUS BY THE COURT.
RAILROADS--Injury at Crossing--Contributory Negligence Bars Recovery. One may not knowingly stand upon a railroad-track in a switch yard, or so near thereto as to be in an equally dangerous position, where he knows, or has reason to know, that cars may run at any time (another position being equally available), neglect to use his ordinary faculties to guard against danger, and, when injured through the negligence of the railroad company by a car passing along such track, recover damages. His contributory negligence bars such recovery. The facts in the case at bar bring the plaintiff within the rule stated.
A. A Hurd, and O. J. Wood, for plaintiff in error.
Waters & Waters, and S. B. Isenhart, for defendant in error.
OPINION
These two cases have been submitted together. They arose from the same set of facts; the same act of negligence on the part of the railroad company caused the death of Mark Withers and that of Walter Dewese, which was the basis for these actions. Judgments for $ 7000 and $ 6500, respectively, were entered against the defendant company, which it seeks to have reversed by these proceedings in error.
These men were killed on Fourth street of the city of Topeka, which runs approximately east and west, and is crossed at right angles by thirteen tracks of the defendant's railroad, those numbered from 1 to 10, commencing on the east side, being used for switching and yarding purposes, and over and along them, especially during the evening and night, many cars are switched back and forth. These tracks are standard guage, their rails being 4 feet 8 1/2 inches apart. The distance between the tracks themselves is about 8 feet and 7 inches. A sidewalk on the north side of the street crosses all of them from east to west, over which many persons pass, especially during the evening hours of Saturday. The street, over its entire width across these tracks, is laid with planks and filled with cinders, so that its surface is even with the tops of the rails. The sidewalk is made entirely of planks. No gates are maintained, or watchmen kept, to guard this crossing during the evening or night.
The accident which resulted in the death of these men occurred about nine o'clock Saturday evening, February 1, 1902. The night was dark, the wind was blowing with considerable velocity from the north, the weather was cold, and there was some snow on the ground. Mark Withers was then in the employ of the railroad company and had been for several years; his business was that of a switchman in the company's yards at Topeka. He was thoroughly acquainted with those yards and with the frequency and manner of handling trains and cars therein. Walter Dewese was also an employee of the company as a laborer in its shops at Topeka, and had been such for about two months. It seems that he was acquainted with the crossing in question, but was not familiar with the surroundings as they then existed. They both knew, however, that they were crossing these tracks.
Withers, in company with one Furman, started along the sidewalk on Fourth street shortly before the occurrence of the accident to cross the tracks, going eastward to his home. As they came near track 4 they observed a train switching along track 3, which obstructed their progress and caused them to halt on or near track 4. Soon thereafter they were joined by Dewese, coming from the same direction. Two other persons, Burt Sutton and Grover Stitt, and possibly others, were halted for the same reason; they, however, were standing in the space between tracks 3 and 4. All these men came from the west within two or three minutes of one another, and remained waiting from three to five minutes for the passage of the train on track 3. To protect themselves from the cold, they had their collars turned up and their caps pulled down over their ears, but it does not appear that their sight or hearing was materially interfered with thereby; on the contrary, the jury found that their sight and hearing were good.
North of Fourth street two blocks is a track known as a "lead-track," on which another switching crew with an engine were operating. This crew, in order to locate a heavy refrigerator-car upon track 4, kicked the same south, expecting it would stop at some point before it reached Fourth street. This car was unattended by any one and unaccompanied by signal or warning. For some reason, perhaps because of an extra hard shove, or because of the wind's blowing from the north, or both, this car, instead of stopping north of Fourth street, came on, running upon and killing Withers and Dewese, and stopping near the south line of Fourth street. Sutton and Stitt were uninjured, though slightly hit by the car.
Much evidence was introduced to show that the deceased men were standing upon track 4; it seems highly probable that they were, though the jury found that they were not; but whether they were exactly upon the track or not seems of small moment, for the fact is that if they were not between the rails they were in a place of equal danger. It was not necessary for them to stand in a place of danger, as they could have stopped west of track 4, or could have safely stood between tracks 3 and 4. At the time there was a car standing on track 5, north of Fourth street, but just how far it does not appear; probably not very far. There was an are electric light to the southwest, about 120 feet away. There was a switchman's shanty on the north side of Fourth street close to the sidewalk, about 100 feet west of the place of the accident. Under favorable conditions this oncoming car could have been seen for forty feet north of the sidewalk.
The jury specially found that the men were careful and that they were not guilty of contributory negligence. It was further found that, somewhere between the switchman's shanty and track 4, they looked north, but saw nothing; that while they were standing waiting for the train to pass on track 3 they were looking east; that they listened for the purpose of determining whether a train or car was approaching while so standing, but heard nothing because of the noise of the other train; that had they then looked north they could not have seen the unlighted car approaching, being prevented by the car standing on track 5, north of the sidewalk, the running train on track 3, the smoke and steam from the engine drawing said train, the darkness of the night, and the absence of light or other signal on the oncoming car.
At the close of the plaintiff's evidence, which showed the facts substantially as above set out, defendant presented a demurrer thereto, which was overruled. The defendant's evidence added little, and at its close the court was requested to instruct the jury to return a verdict for the defendant, which instruction was denied. These rulings are here relied on for error.
The railroad company does not deny that it was negligent. Its contention is that it was relieved from the consequences of this...
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