The Atchison v. Todd

• Decision Date: 05 January 1895
• Citation: 54 Kan. 551,38 P. 804
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. HENRY A. TODD, as Administrator of the estate of Wm. H. Todd, deceased

38 P. 804

54 Kan. 551

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. HENRY A. TODD, as Administrator of the estate of Wm. H. Todd, deceased

Supreme Court of Kansas

January 5, 1895

Error from Sedgwick District Court.

ACTION by Henry A. Todd, as administrator of the estate of William H. Todd, deceased, against The Atchison, Topeka & Santa Fe Railroad Company and the Wichita & Western Railway Company, to recover damages for negligently killing William H. Todd, while he was sitting under a freight car in the yards of the railroad company in Wichita. The jury returned a verdict for $ 650 against the Atchison, Topeka & Santa Fe Railroad Company, and with their verdict the following answers were returned to special questions:

"1. Q. Is it not a fact that the accident in question occurred in the yards of the Wichita & Southwestern Railroad Company at the point in question, where said railroad was operated by the Atchison, Topeka & Santa Fe Railroad Company? A. Yes.

"2. Q. Is it not a fact that William H. Todd, at the time of the accident, was a trespasser upon the track of the railroad company? A. Yes.

"3. Q. Is it not a fact that, at the time of the accident in question, the said William H. Todd was sitting under a freight car, and was playing? A. No evidence as to his playing, but was under the car.

"4. Q. At the time of the accident in question, what business, if any, did the said William H. Todd have under the freight car of the defendant the Atchison, Topeka & Santa Fe Railroad Company? A. None.

"5. Q. Is it not a fact that the yards of the defendant in the city of Wichita, at the time of the accident, were in the neighborhood of two miles in length, and that there were from 350 to 375 cars in said yards, on an average, daily, about the time of the accident? A. Yes.

"6. Q. Did any of the employes of these defendants know that the said William H. Todd was under the car in question prior to the injury? A. No.

"7. Q. Is it not a fact that the child's father, Henry A Todd, had as good an opportunity to know that he was under the car as the defendant just prior to the accident.? A. No.

"8. Q. Is it not a fact that the said William H. Todd was nine years and three months old at the time of the accident? A. Yes.

"9. Q. Is in not a fact that he was a bright and intelligent boy for his age? A. Yes.

"10. Q. Is it not a fact that the said deceased, William H. Todd knew that it was wrong to go under the cars and to sit and play there? A. Yes.

"11. Q. Is in not a fact that the said William H. Todd had been frequently cautioned, prior to the accident, by his parents of the danger attending his going upon or under the cars. A. Yes.

"12. Q. Is it not a fact that a prudent, intelligent and bright boy of nine years and three months old, who had been frequently cautioned not to go under the cars, would ordinarily know and appreciate the risk of going under the cars to such extent as to know it would be dangerous? A. Yes.

"13. Q. Is it not a fact that the deceased, William H. Todd, had no right or authority from the railroad company to sit under the car in question? A. Yes."

"15. Q. Do you find from the evidence that the fireman, Burchie was a competent fireman? A. No.

"16. Q. Do you find from the evidence that the engineer of the switch engine was a competent engineer? A. By his own evidence, yes."

"18. Q. Is n't it a fact that a boy seven years of age, of average intelligence and brightness, would understand and appreciate the danger of remaining under or going under freight cars and remaining there, in a railroad yard where cars are being continually switched? A. Yes.

"19. Q. Do you find that underneath the cars in railroad yards there is commonly anything especially attractive to children to play with? A. No."

"21. Q. Is it not a fact that, between Douglas avenue on the north and the place where the switch track on which deceased was injured joins the main track, there are no public highways or street crossings? A. Yes.

"22. Q. Do you find from the evidence that the deceased was capable, considering his years, of understanding and knowing something of the danger he placed himself in by playing under the cars? A. Yes."

"25. Q. Do you find from the evidence that the bell on the engine was rung just before the engine started onto the switch from the main track? A. No.

"26. Q. Is it not a fact that the deceased had the capacity at the time of the injury to know the probable results of being under the car at the time of injury, if the engine should be backed onto the car and the car moved? A. Yes.

"27. Q. Is it not a fact that the deceased, William H. Todd, at the time of the injury, knew that the cars were frequently switched about in the defendant's yard and on the east side tracks thereof. A. Yes."

"29. Q. How wide was the right-of-way at the point of the injury? A. About 207 feet.

"30. Q. Did the defendant recklessly and wantonly run over the deceased? A. No; but negligently.

"31. Q. What do you find would have been the probable length of life of the deceased, if he had not been injured as alleged? A. No evidence.

"32. Q. Is it not a fact that there are no street crossings across the defendant's yards between Douglas avenue and where the west side track converges into the main track, south of Douglas avenue? A. Yes.

"33. Q. How far was the child's father from him at the time of the injury? A. Eight or 10 feet.

"34. Q. Was the said William H. Todd, deceased, of sufficient capacity to know that the ringing of the bell of the engine would be a signal of the approach of the engine and of danger to him? A. Yes."

"36. Q. How long before the injury was it that the deceased, William H. Todd, went out of the fanning-mill shop to the west door? A. One to three minutes.

"37. Q. When said William H. Todd went out of the fanning-mill shop onto the track, did his father know he had gone out there? A. No.

"38. Q. Is it not a fact that the bell was rung just before the switch engine started out on the east side track just prior to the accident? A. No."

"40. Q. What warnings, if any, did the defendant fail to give of the approach of the switch engine just prior to the injury? A. Failed to give the proper warnings."

"44. Q. Is it not a fact that, prior to the accident, Henry Todd, father of the deceased, had whipped William H. Todd for going upon the railroad track and about the cars? A. Yes."

"49. Q. Is it not a fact that the door of the fanning-mill shop next to the east side track was about four feet wide, and was open at the time of the accident? A. Yes.

"50. Q. How far do you find that this door was from the east rail of the east side track? A. Four or five feet.

"51. Q. How far was the father of William H. Todd at the time of the accident from the west door of the fanning-mill shop? A. Four or five feet.

"52. Q. Was any signal given of the approach of the engine just prior to the injury? A. No.

"53. Q. If you answer 'no' to the last question, do you find that if such a signal had been given that it would have been a warning to the father that his child, William H. Todd, was in danger in time for the father to have rescued said child? A. No.

"54. Q. Did said father know that William H. Todd, deceased, was in the switch yards of the defendant just prior to the injury? A. No."

"57. Q. Could the engineer or fireman of the switch engine in question by any means have seen the deceased, William H. Todd, underneath the car without first leaving the engine to look under the car? A. No."

"59. Q. If you find for the plaintiff, how much, if anything, do you find in your general verdict for loss of the service of the deceased to his parents during his minority? A. Nothing.

"60. Q. If you find for the plaintiff, how much do you allow in your general verdict for loss of the society of the deceased to his next of kin? A. Nothing.

"61. Q. If you find for the plaintiff, how much do you allow in your general verdict for pain and suffering of the deceased by reason of the accident? A. Nothing.

"62. Q. If you find for the plaintiff, how much do you allow for grief of next of kin by reason of the death of the deceased? A. Nothing."

The railroad company filed a motion for judgment, under the evidence and the special findings of the jury, which was overruled, and judgment rendered in favor of the plaintiff below. The railroad company alleges error.

Judgment reversed and cause remanded.

A. A. Hurd, and Robert Dunlap, for plaintiff in error:

Under the undisputed evidence and the findings of the jury, judgment should be rendered in favor of the railroad company.

It is not claimed that any of the employes, prior to the accident, saw the dangerous position of the boy, or that they discovered his whereabouts in time to prevent the injury. He was so concealed under the box car that it would be almost impossible for the men operating the train to discover him. It is simply claimed that the defendant was negligent in failing to give some warning or signal of the switching which was being done on that track. While it is doubtful whether, if a signal were given, the deceased would have been advised of the approach of the cars upon that track in time to avoid the injury, yet, as to this boy, the railroad company did not owe the duty of warning him. He was a trespasser; he had no right to be where he was, and he knew that it was wrong for him to be there. The railroad company gave him no leave or license to enter its yards, nor was leave or license given to the public generally to enter these yards, and therefore it was not incumbent upon the railroad company to adopt or take precautions for the protection of those who had no legal right to be there.

The evidence did not show a license on the part of the railroad company, but...