The Atchison v. McFarland

• Decision Date: 01 January 1896
• Docket Number: 50
• Court: Kansas Court of Appeals
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. THOMAS MCFARLAND, as Administrator of the Estate of Oden Toyne, deceased

43 P. 788

2 Kan.App. 662

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. THOMAS MCFARLAND, as Administrator of the Estate of Oden Toyne, deceased

No. 50

Court of Appeals of Kansas, Northern Department, Eastern Division

January 1, 1896

Opinion Filed January 9, 1896.

MEMORANDUM.--Error from Douglas district court; A. W. BENSON judge. Action by Thomas McFarland, as administrator of the estate of Oden Toyne, deceased, against The Atchison, Topeka & Santa Fe Railroad Company to recover damages for death of plaintiff's intestate. Judgment for plaintiff. Defendant brings the case to this court. Reversed. The opinion herein was filed January 9, 1896.

The statement of the case, as made by GARVER, J., is as follows:

Action brought by the defendant in error as the administrator of the estate of Oden Toyne, deceased, to recover damages for the death of his intestate, which is alleged to have been caused by the negligence of the plaintiff in error in the operation of its trains. The accident occurred August 4, 1889, about five miles east of the city of Lawrence, at a public- road crossing, the railroad running east and west and the public highway north and south. The deceased was a child 22 months old, residing with his parents on a farm, the house being uninclosed and situated about 200 feet west from the crossing. No one saw the child at or near the crossing until after he had been struck by a passing train, nor was there any direct evidence as to how the accident occurred. A short time, probably about 15 minutes, before the train passed, the child, with his twin brother, was playing near the house, and this was the last known of his whereabouts until after he was injured. Within a few minutes after the passing of the train the two children were found lying from three to six feet apart, 18 to 20 feet north of the railroad- track and on the east side of the public highway. Both children were seriously injured, Oden dying within a few hours after he was hurt. The passing train was a passenger, going east between 4 and 5 o'clock in the afternoon. The external injuries shown upon the body of the deceased consisted of a cut over the right eye, a fracture of the left arm, and a fracture and dislocation of the left hip, the injury on the head being the probable cause of death. The other child received somewhat similar injuries upon the head, and had a fracture of the right thigh. The jury returned a general verdict for the plaintiff for $ 1,000, and made special findings of fact among which were the following:

"14. Did any person or persons see Oden Toyne, or his twin brother, at the place where the accident occurred, at or shortly before it happened, and, if so, state who it was that saw them? Ans. No."

"16. Was not the whistle sounded for the road crossing, by the engineer, where the accident occurred, as the train approached it at that time? A. No."

"17. Was the bell of the engine rung as the train approached the crossing at the time? A. Yes.

"18. Was not the whistle of the engine of that train sounded at an audible distance from the crossing where the accident occurred as the train approached it? A. Yes.

"19. Was not the engineer upon his seat in the cab of the engine looking ahead along the railroad track at and before the time of the accident and as his train approached the crossing where the accident occurred? A. Yes; he was on his seat, but was not looking ahead with proper diligence along the track immediately before and at the time of the accident.

"20. Were not the engineer and fireman of said train both engaged in the proper discharge of their duty as they approached and passed said crossing, and, if not, wherein were they neglecting such duty? A. No; they were not looking ahead intently enough to observe objects upon the track.

"21. Did not the fence running up to the cattle-guard on the west side of this crossing create such an obstruction as might have prevented the engineer and fireman on said engine from seeing a small child, or children, standing on the highway near such fence and within a short distance of the railroad-track? A. Yes."

"23. If you find that the injury to Oden Toyne was caused by the negligence of the defendant, then state the particular act or acts of negligence that caused the injury. A. By not keeping a proper and careful lookout ahead.

"24. Do you find from the evidence where the children were standing at the time they were struck, and whether they were struck by the engine or cars? A. Yes.

"25. If you answer the last question in the affirmative, then state just where they were standing, and whether the engine or cars struck them. A. Standing about the middle of the highway, on the track, between the rails, near the north rail, and were struck by the pilot of the engine."

Judgment reversed and case remanded.

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

Riggs & Nevison, for defendant in error.

GARVER J. All the Judges concurring.

OPINION

GARVER, J.:

The plaintiff in error contends that the evidence fails to show culpable negligence on the part of the railroad company, and that it does show contributory negligence on the part of the parents of the child injured. The allegations of negligence contained in the petition are of a somewhat general nature, but specifically charge negligence on the part of the employees in charge of the train in failing to give any warning signals of the approach of the train to the crossing, and also in failing to observe the child upon the track in time to prevent the train from running against or over it. The jury found that the bell of the engine was rung, but the whistle not blown, for the crossing, though the whistle was sounded within an audible distance of the crossing as the train was approaching it. It was also found by the jury that the engineer and fireman, while in their proper places, were not looking ahead intently enough to observe the children upon the track, and this failure on their part, in not keeping a proper and careful lookout ahead," is the particular act of negligence found by the jury as the basis of the plaintiff's right to recover. This finding of negligence, it is claimed, is entirely unsupported by the evidence.

It is evident that the injury complained of was caused by the train. But, outside of mere inferences and conjectures, there is no evidence which shows the proximity of the children to the railroad-track immediately before the train reached the crossing, nor whether they were on, or at the side of, the track when the train struck them. The engineer and fireman both testified that they saw nothing of the children at the crossing, and knew nothing of any one being struck or injured at that point until the train arrived at Kansas City, when information of the accident was conveyed to them by telegraph. The finding of the jury that the children were standing between the rails and were struck by the pilot of the engine has its support in the testimony of a witness who saw the children as they lay upon the ground, within a few minutes after the accident, and who stated that a straight line drawn from where the surviving child lay through two marks upon the ground, which looked as if the body had struck at those points, and extended in a southwesterly direction, would cross the track at a point where the traveled part of the public highway and the railroad-track intersected each other; that the distance from this point in the center of the track to the first mark on the ground was 13 feet, to the second mark 20 feet, and to where the body lay 31 feet. The children were found lying from three to six feet apart, and about five or six feet west of a board fence which extended north from the cattle-guard on the east side of the public road. There were marks on and near this fence, indicating that, when struck by the train the deceased child was thrown against the fence and rebounded to the place where he lay. The physician who was called in and who testified as a witness for the plaintiff below gave...