The Atchison v. Parry

• Decision Date: 10 July 1903
• Docket Number: 13,257
• Citation: 73 P. 105,67 Kan. 515
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. ALICE M. PARRY

73 P. 105

67 Kan. 515

THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. ALICE M. PARRY

No. 13,257

Supreme Court of Kansas

July 10, 1903

Decided July, 1903.

Error from Harvey district court; M.P. SIMPSON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1.RAILROADS--Duty to Passenger.It is the duty of a carrier of passengers to exercise reasonable and ordinary care in looking after and protecting one who becomes sick or unconscious while a passenger.Whether such care has been exercised is ordinarily a question of fact for the jury.

2.RAILROADS--Proximate Cause--Question for Jury.Negligence, to be the proximate cause of an injury, must be such that a person of ordinary caution and prudence would have foreseen that some injury would likely result therefrom not that the specific injury would result.The question whether negligence is the proximate cause of an injury is ordinarily one of fact for the jury.

A. A. Hurd, and C. S. Bowman, for plaintiff in error.

John J. Hildreth, for defendant in error.

CUNNINGHAM J.All the Justices concurring.

OPINION

CUNNINGHAM, J.:

Robert Parry was a passenger on the Santa Fe railway going from Purcell, I. T., to Denver, Colo.In making this journey he was required to change cars at Newton, Kan.As the train approached Newton, and a mile or two south of it, the conductor observed that Parry was ailing with something that looked to him like a fit.He noticed that he"was straightened out and his limbs were stiff and jerking.He was frothing at the mouth, and his eyes looked glaring and starry, just like a man that had a fit."When the train arrived at Newton, Parry seemed to be recovering, but had not entirely regained consciousness, and the conductor was unable to get any response when he tried to converse with him.The conductor called the depot-master, who, with the assistance of the porter, removed Parry from the train, the depot-master being informed by the conductor of the condition of the passenger, and requested to take care of him and see that he was put upon the right train to take him to his destination, which train was to leave in about four hours.After the passenger was removed from the train, he was left in the care of the depot-master, the porter going to his other duties.The depot-master tried to talk with him, but elicited nothing but groans, mutterings, and unintelligible replies.It seemed, however, that he desired to go his own way without any assistance, so that, after helping him on with his coat, he was allowed, after about five or ten minutes, to take his own course without further attention, the depot-master supposing that he had been drinking and desired to go where he could procure liquor.The next seen of him was about four hours after his removal from the train, at a point about five miles south of Newton, where, having laid down upon the railway-tracks, he was run over by a south-bound train and killed.

The negligence counted upon by the plaintiff, his widow, as a ground for recovery was that the company failed to exercise a proper degree of caution and care in looking after Parry after he was removed from the train in an unconscious and irresponsible condition of mind and body.The jury returned a general verdict in favor of the defendant in error, and also answered special questions submitted to them.Among them were the following:

"7th.What was his appearance and condition, mentally and physically, on his arrival in Newton?Ans.Recovering from a convulsion, apparently unconscious.

"8th.Did J. W. Anderson, the depot-master at Newton, of the defendant, take charge of the deceased upon his arrival at Newton?A.He did."

"10th.Does said Anderson possess the common and ordinary capabilities, judgment and prudence of men and persons generally?A.We think so.

"11th.About how long did said Anderson keep charge of said deceased?A.Five to ten minutes."

"15th.(When) said Anderson ceased to care for the deceased, did Anderson believe that the deceased had sufficient strength and consciousness to take care of himself?A.He claimed so.

"16th.At the time Anderson ceased to care for the deceased, did he think or contemplate that deceased would wander away and afterwards get into a place of danger and lose his life?A.No."

The railroad company demurred to the plaintiff's. evidence, which was overruled.It also moved for judgment in its favor upon the special findings.This was overruled, and judgment entered for plaintiff on the general verdict.

The railway company insists that the judgment against it was erroneous, first, because there was no evidence showing any culpable negligence on the part of any of its agents or servants; second, if there was, that such negligence was not the proximate cause of the injury.The principles to which we must look for a solution of these questions are neither novel nor intricate.Parry was a passenger not only while on the train but after his arrival at Newton.Through no fault of his, he was in such a condition of mind and body as to be unable to care for...