The Atchison v. Morgan

• Decision Date: 01 July 1883
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. ZENO W. MORGAN

1 P. 298

31 Kan. 77

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. ZENO W. MORGAN

Supreme Court of Kansas

July 1, 1883

Error from Chase District Court.

ACTION brought by Zeno W. Morgan against The Atchison, Topeka &amp Santa Fe Railroad Company, to recover damages for the killing of two steers and the injury of a third at a public crossing through the culpable negligence and mismanagement of the employes of the railroad company. Trial at the May Term 1883. The jury returned a verdict for the plaintiff, and assessed his damages at $ 74.16. They also made the following findings of fact:

"1. If the engineer had blown the whistle or rung the bell at a point eighty rods east of the crossing, when the cattle in controversy were killed or injured, would the blowing of such whistle or the ringing of the bell have stopped the cattle that were killed or injured, from getting upon the railroad track at the crossing when they were struck by the engine at the time when they were struck? A. No.

"2. Did not the engineer of the train which struck the animals in controversy, do all that he could do from the time he saw the cattle first until the engine struck them, to prevent the engine from striking them? A. We think not.

"3. If the jury answer the last question in the negative, they may then state what the engineer could have done after he first saw the cattle, to prevent striking them with the engine; state fully. A. If the engineer saw the cattle, as he testified, when his engine was thirty rods east of the crossing, the cattle being fifteen rods north of the crossing and one-half of the cattle having time to cross the track with his train running at the rate of from seventeen to twenty miles per hour, he could have slowed his train sufficiently to allow all the cattle to cross the track in front of the engine.

"4. If after the engineer of the train which struck the cattle first saw these cattle he had slowed the train, would that have prevented the cattle from getting on the track and being struck? A. According to his own testimony, if he slowed his train a very little, the cattle could have crossed the track ahead of the engine.

"5. After the engineer of the train which struck the cattle first saw the cattle, could he have stopped his train so that it would not have reached the crossing? A. Not if he was as close as he testified he was.

"6. State fully what negligence the defendant or any of its employes were guilty of, which resulted in the killing and injuring of the cattle in controversy. A. 1. The defendant was guilty of negligence by not having a whistling-post up, as required by law. 2. Its employes were guilty of negligence for not blowing the whistle when within eighty rods of a crossing, as required by law."

Judgment having been entered for the plaintiff, The Company brings the case here.

Judgment reversed and cause remanded for new trial.

Geo. R. Peck, C. N. Sterry, and Robert Dunlap, for plaintiff in error.

Madden Bros., for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

It is contended on the part of the railroad company, that judgment should have been rendered in its favor upon the special findings of the jury. This is not so. The findings are contradictory and conflicting. It is evident from the special findings, that the jury founded their verdict upon a misconception of the law applicable to the case; thus, they found that if the engineer had blown the whistle or rung the bell at a point eighty rods east of the crossing where the cattle were injured and killed, neither such blowing of the whistle nor the ringing of the bell would have stopped the cattle from going upon the railroad track at the crossing yet they found that the only negligence of which the defendant or any of its employes was guilty, was in not having up a whistling-post, and in not sounding the whistle attached to the engine three times, at least eighty rods from the place where the railroad crossed the highway. The statute does not require a railroad company to put up whistling-posts. The omission to sound the whistle of an engine in accordance with the provisions of § 60, page 226, Comp. Laws of 1879, is negligence. (Railroad Co. v. Rice, 10 Kan. 426; ...