The Atchison v. Shaw
| Decision Date | 07 March 1896 |
| Docket Number | 8110 |
| Citation | 56 Kan. 519,43 P. 1129 |
| Court | Kansas Supreme Court |
| Parties | THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. ALICE SHAW |
Decided January, 1896.
Error from Sedgwick District Cout.
THIS action was brought by Alice Shaw to recover damages for injuries received while crossing a railroad track in the city of Wichita. The plaintiff and Mrs. Frazer, with her baby were in a spring wagon passing along First street. Near the intersection of First street and Fifth Avenue, First street crosses a number of railroad tracks. The west one, where the plaintiff was injured, is called the "Hawn track." About 53 feet east from this is what is termed the "Wichita & Western track," and about 15 feet from that is the main track. There were many cars standing on the various tracks at the time, the Wichita & Western track being nearly filled with cars. On the Hawn track there were about 15 freight cars. There was an engine in the vicinity of Second street, which is the next street north from First street, and distant about 600 from it, engaged in switching cars onto the Hawn track. The train crew consisted of an engineer, fireman, foreman, and two others. The testimony all shows that the engineer and fireman were on the engine; that a man named Lee was stationed near the switch-stand connecting the Hawn track with the Wichita & Western. As to the location of the other two men at the time the plaintiff was hurt the evidence is somewhat conflicting but it appears that McCambridge, the foreman, was down near First street, and that he went between the cars to which the engine was attached and other cars which were standing near First street to make a coupling. The foreman testified that he himself stood within 30 feet of First street, and that the other man, whose name he did not remember, but whom he calls "Flatty," was located in the center, between himself and Lee. It seems clear from all the evidence that the name of the man he calls "Flatty" was Ingram and, according to his testimony, he was then just south of the place where the accident occurred, about to make a coupling between the car that struck the plaintiff and another car south of First street. From the testimony of the plaintiff and Mrs. Frazer, it appears that, as they approached the track, the speed of the horse was slackened; that they both looked up and down the tracks to see if there were any engine or cars approaching; that they saw many cars on the various tracks, but did not see any engine. They passed along the street across all the tracks but the last one on a slow trot. As the horse was about to step on the Hawn track, they noticed that a car which had been standing partly in the street began to move. It appears that about this time a person standing on the sidewalk on the north side of the street called to them, and there is some testimony that Ingram, McCambridge, and Ruggles, a car sealer, also called to them before they came to the track, but they did not hear any of the warnings. They urged the horse forward, deeming it the safer course to pursue. The hind wheels of the buggy were struck by the car, and the plaintiff was thrown forward to the ground near the horse's feet and hurt. The testimony of the engineer shows that he received no signal at the time the buggy was struck, nor until he stopped; that he stopped Other testimony shows that a bolt on the corner of a car caught the felloe of the hind wheel of the buggy, holding it fast, and that it was shoved back by the moving car until it struck the platform of the Zephyr mill, which was located west of the track, on the south side of First street. The cars moved on some distance past the north end of the mill platform.
The jury rendered a general verdict in favor of the plaintiff for $ 5,000, and by their special verdict they stated that $ 1,000 of this amount was allowed as exemplary damages. Motions were made for judgment in favor of the defendant on the special findings of the jury, and for a new trial. The motion for judgment was overruled, and on the hearing of the motion for a new trial the plaintiff remitted the $ 1,000 allowed as exemplary damages, and thereupon that motion also was overruled, and a judgment entered on the verdict for $ 4,000. The defendant brings the case to this court. The opinion herein was filed March 7, 1896.
Judgment affirmed.
A. A. Hurd, and F. W. Bentley, for plaintiff in error.
Smith & Douglass, and Holmes & Haymaker, for defendant in error.
OPINION
The errors assigned are very numerous. We have examined them all, but deem it unnecessary to make mention of any but the principal questions presented.
I. It is said that the negligence charged was that "the engineer and servants in charge of said train, suddenly carelessly, and with gross negligence, backed said train across said highway, striking the wagon in which said plaintiff was riding." On the trial, the plaintiff offered in evidence an ordinance of the city of Wichita,...
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