The Atchison v. McElroy

• Decision Date: 05 July 1907
• Docket Number: 15,119
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. CLARENCE MCELROY, a Minor, etc

91 P. 785

76 Kan. 271

THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. CLARENCE MCELROY, a Minor, etc

No. 15,119

Supreme Court of Kansas

July 5, 1907

Decided July, 1907.

Error from Clay district court; SAM KIMBLE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS--Tracks between Passenger-train and Platform-- Duty to Licensees. When a railroad company stops a passenger-train where other tracks are between it and the depot platform, the rights of people having business with such train, and the duty of the company toward them, are the same as if all the intervening space between the depot and the train constituted the platform.

2. RAILROADS--Contributory Negligence. Under such circumstances passengers and other persons rightfully there have a right to assume that they will be protected from danger by the company, and are under no obligations to anticipate and guard against the approach of other trains. The ordinary rule of "look and listen" does not apply to such a situation.

3. RAILROADS--Injury to a Licensee. A boy about eleven years of age was sent by his father to deliver a package to a passenger on a train which was expected to stop at the station. Held, that the boy, while engaged in making such delivery and returning to the station platform, was rightfully on the premises of the railroad company and entitled to be protected, at least by the exercise of ordinary care.

4. RAILROADS--Running Trains between Platform and Standing Passenger-train. When a railroad company causes a passenger-train to stop on a side-track, leaving other tracks between it and the depot platform, it is negligence to permit another train to pass between such passenger-train and the depot at a high rate of speed and without giving warning thereof by ringing the bell, sounding the whistle, or otherwise, while business is being rightfully transacted with the standing train; and the company will be liable to any person rightfully there who is injured thereby.

William R. Smith, O. J. Wood, and Alfred A. Scott, for plaintiff in error.

C. C Coleman, and F. L. Williams, for defendant in error.

OPINION

GRAVES, J.:

Clarence McElroy, a boy about eleven years of age, was struck by a passing engine on the railroad track of the plaintiff in error at the station of Aurora, in Cloud county, and was injured so that his left foot had to be amputated. He commenced this action in the district court of Clay county May 3, 1905, and recovered a judgment of $ 3000. The railway company brings the case here for review.

At the station of Aurora the north-bound passenger-train and the one going south pass each other. The north-bound train, as a rule, arrives first, and stops on a side-track, leaving the main track between it and the depot platform. Passengers leaving the train and those getting on are compelled to cross over the main track. If the train going south arrives before the north-bound train leaves, which it does ordinarily, no stop is made until reaching the depot platform. The plaintiff, on the occasion in question, was sent by his father, who was engaged in business at that place, to deliver a small package of merchandise to a passenger on the north-bound train. The boy delivered the package to the passenger while the train was standing on the side-track, and before he got across the main track on his return he was struck by the engine of the train going south, as it was approaching the platform. No warning by whistle, bell or otherwise was given to indicate the coming of the train from the north. The plaintiff did not look or listen for the incoming train or take any care to avoid danger therefrom.

Much has been said in argument concerning the degree of care due from the company to the plaintiff, and upon the question of plaintiff's contributory negligence. Many special questions were submitted to, and answered by, the jury for the purpose of developing these propositions. In our view of the case, however, it will be unnecessary to consider all of the questions presented. Where a railroad company finds it necessary or convenient in the transaction of its business to have a passenger-train stop on a side-track, leaving one or more tracks between such train and the depot platform, that method may be adopted; but if it is, then, as between the...