The Atchison v. Townsend

• Decision Date: 01 January 1888
• Citation: 39 Kan. 115,17 P. 804
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. CALVIN P. TOWNSEND

17 P. 804

39 Kan. 115

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. CALVIN P. TOWNSEND

Supreme Court of Kansas

January 1, 1888

Error from Jefferson District Court.

Action to recover damages for bodily injuries. Trial at the October term, 1886, and judgment for plaintiff Townsend for $ 3,500. The defendant Railroad Company brings the case here.

Judgment reversed.

Geo. R Peck, A. A. Hurd, and Robert Dunlap, for plaintiff in error.

Thos P. Fenlon, and Louis A. Myers, for defendant in error.

HOLT C. All the Justices concurring.

OPINION

HOLT, C.

On February 21, 1885, the defendant in error drove from Valley Falls to his home, about two miles northeast of that city. He was compelled to cross the track of the defendant's railroad twice, and at the crossing nearest his home, the locomotive of a passing passenger train of the defendant struck the rear end of the wagon in which he was riding, and he was thrown out and his foot injured. He brought this action against the company for the injury sustained. It was tried at the October term, 1886, of the Jefferson district court, and he recovered judgment for $ 3,500. The company brings the case here.

The only errors complained of that we care to notice are, first, the admission of irrelevant testimony; and second, whether the plaintiff was guilty of contributory negligence. A witness for defendant, J. B. Kelly, in his direct examination, testified that he was the fireman on the train which ran into plaintiff's wagon at the crossing; that for the last twenty-six months his run had been between Topeka and Atchison, and that on the day the accident occurred the whistle was sounded three times at the whistling-post eighty rods west of the crossing. Upon cross-examination he testified: "During all the time I worked as fireman on that train, the whistle of the engine on which I worked was regularly sounded for the crossing, and the engineer never failed to sound his whistle for the crossing." Over the objection of the defendant, other witnesses were allowed, in rebuttal, to testify that at other times than upon the day when the accident occurred, the whistle was not sounded for the crossing in question. Defendant contends that such evidence was irrelevant and immaterial, and as it tended only to contradict the witness on a fact which was collateral and irrelevant, and about a matter that was drawn out by the plaintiff himself upon cross-examination, it was error for the court to admit it. We are of the opinion that the contention of the defendant is correct. This testimony did not tend to establish any issue in the case. The witness had testified about the sounding of the whistle upon nearing this crossing that day. In the cross-examination by plaintiff, he gave evidence concerning the blowing of the whistle at other times--that it was the invariable habit of the engineer to sound the whistle at all crossings. Such testimony would not be proper cross-examination ordinarily; in this instance, for the additional reason that this was the first trip the witness had made with the engineer then in charge of the engine, and the first time the engineer had run this passenger train. The well-settled rule is, that a witness cannot be contradicted by evidence which is collateral and irrelevant to the issue, simply for the purpose of discrediting him. (R. V. Rld. Co. v. Linn, 15 Neb. 234; 1 Greenl. Ev., § 449.) This testimony was important, because the only negligence of defendant complained of was the failure to sound the whistle at this crossing, and there was a conflict of evidence upon this question, not greatly preponderating in favor of either party. We believe that the court erred in permitting such testimony to go to the jury.

It is claimed by the defendant that Townsend was guilty of negligence in attempting to cross the track of defendant's road at the time of the accident. The facts, as shown by the record, appear to be: The plaintiff had lived at his then home for eight years, and had crossed the track at this point very often during that time, and had become familiar with it; in approaching the crossing at the time of the collision he was going nearly north, and the train nearly east; the wagon-road along which he was passing, before it reached the railroad track, was on higher ground, descending gradually until it crossed the rails; for some distance on the west side of the wagon-road there were brush and small trees, but they did not obscure the view of the railroad except for a rod or two immediately before it entered the defendant's right-of-way; the right-of-way itself was clear of brush and trees; the wagon-road first touched it about sixty feet from the rails; at that point the track could be seen west of the crossing a distance of five hundred feet, and when thirty feet from the crossing it could be seen seven hundred and fifty feet. Plaintiff himself testified that when he was six or eight rods from the crossing he looked for the approach of a train, and from the place from which he looked he could have seen a train of cars twenty-five rods west of the crossing; he did not look for the train after he reached defendant's right-of-way; the jury found that he ceased to look at the distance of seventy feet before he reached the rails. He was driving his team at a slow walk, and the train was approaching at the rate of thirty-five miles an hour. He wore a woolen overcoat and cloth cap, and around his neck a scarf about two yards long and fifteen inches wide; he testified that he did not hear the whistle of the engine, nor the tread of the approaching train.

The defendant contends that this testimony establishes the fact that plaintiff was guilty of negligence and that such negligence contributed to his injury, and for that reason insists that he ought not to recover. The plaintiff argues that as he did look up the track, that was some evidence of care, and as the question was submitted to the jury, and they found in his favor, it is conclusive on that point. Plaintiff further argues that it was the province of the jury to determine whether his...