The Atchison v. Schriver

• Decision Date: 03 July 1909
• Docket Number: 16,099
• Citation: 80 Kan. 540,103 P. 994
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. P. D. SCHRIVER, as Administrator, etc

103 P. 994

80 Kan. 540

THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. P. D. SCHRIVER, as Administrator, etc

No. 16,099

Supreme Court of Kansas

July 3, 1909

Decided July, 1909.

Error from Chase district court; FREDERICK A. MECKEL, judge.

STATEMENT.

THIS action was commenced in the district court of Chase county by the administrator of the estate of P. P. Schriver deceased, to recover damages sustained by the next of kin on account of the death of P. P. Schriver, who was killed while crossing the defendant's railroad near Cedar Point, in that county.

It appears from the evidence that P. P. Schriver, on February 16, 1907, in company with Warren Peck, a neighbor, was returning from the funeral of a friend, in a buggy drawn by one horse. About four o'clock in the afternoon of that day they approached the railroad, and while attempting to cross it upon the public highway were struck by train No. 6 which is a fast train running between Chicago and Denver, and killed. At this time the train was running at an unusually high rate of speed, estimated at from sixty-five to eighty miles an hour. The weather was clear and the sun shone brightly. The ground in the direction from which the train came was comparatively level, and no obstacles intervened to prevent the train from being seen. At that time, however, the sun was in such a position that it shone directly into the eye of a person looking in the direction of the train and interfered with the vision. A wind was blowing, and it carried the rumble and noise of the running train away from the deceased. The road has double tracks between the stations east and west of the crossing in question, and the train was running on the south, or east-bound, track. The horse being driven to the buggy in which the deceased was riding was gentle and well in control of the driver.

The administrator recovered a judgment against the railroad company, and it brings the case here for review.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS--Injury at a Crossing--Contributory Negligence. In an action against a railroad company to recover damages. on account of a death caused by it at an ordinary country crossing the court instructed the jury, in substance, that a person about to cross a railroad track upon a public highway in front of an approaching passenger-train, which he sees, may assume that the train is not moving at a speed greater than usual; and if, with this assumption, the situation is such that a man of ordinary care would not regard an attempt to cross the track ahead of the train dangerous, it will not be deemed contributory negligence to make such an attempt. Held, error.

2. RAILROADS--Speed of a Train. Where a traveler is at an ordinary country railroad-crossing, and sees an approaching passenger-train, he must assume that such train may be running at any rate of speed which the business or necessities of the company require, and act accordingly.

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

W. E. Stanley, and L. B. Kellogg, for the defendant in error.

OPINION

GRAVES, J.:

Several assignments of error have been presented and argued, but in the view we have taken one only need be considered. The plaintiff in error complains of several instructions given to the jury by the court, but it especially criticises those numbered 10 and 11, which read:

"(10) If you believe from the evidence that the plaintiff's intestate saw the approaching train and without negligence on his part failed to observe from his position the unusual speed at which it was running, if it was running at an unusual speed, so that his conclusion that he could safely cross before the train reached the crossing was not an unreasonable one, he will be exonerated from contributory negligence on this account; because it is not negligence in law for a person in the exercise of ordinary care and caution to cross a railroad track upon a road-crossing in front of an approaching train which he has seen and which does not appear to him to be dangerously near, and which would not have been so in fact if it had not been running at an unusual rate of speed.

"(11) No principle of law requires that a traveler in a vehicle should stop his team and wait the passing of an approaching engine and train if he discovers an engine and train on the line at such a distance as that in the exercise of reasonable care and prudence he believes he may safely proceed on his way and cross the track. In such a case the question of fact for the jury is, Did he use reasonable care and caution in determining whether or not he could safely cross the track?"

The rule of law stated in these instructions can not, as we view it, be applied to ordinary railroad-crossings. A similar rule has been upheld by this court when applied to the operation of street-cars in a...