The Atchison v. Walkenshaw
| Decision Date | 07 July 1905 |
| Docket Number | 14,239 |
| Citation | 71 Kan. 742,81 P. 463 |
| Court | Kansas Supreme Court |
| Parties | THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. JOHN WALKENSHAW, a Minor, etc |
Decided. July, 1905.
Error from Finney district court; WILLIAM EASTON HUTCHISON, judge.
Judgment reversed.
SYLLABUS BY THE COURT.
RAILROADS--Sounding of Whistles--Frightening Horses. A railroad company is not liable for injuries occasioned to a traveler by reason of his team becoming frightened on a highway running parallel with and close to a railroad from the sounding of a whistle on a passing train, where it appears that it occurred at a place remote from a crossing, that the signal was given in the usual way, for a lawful purpose incidental to the operation of the railroad, and also that the engineer had no knowledge of the presence of the traveler and his team at or before the time the signal was given.
A. A Hurd, O. J. Wood, and Alfred A. Scott, for plaintiff in error.
G. L. Miller, for defendant in error.
OPINION
This was an action by John Walkenshaw, a minor, to recover damages from the Atchison, Topeka & Santa Fe Railway Company for personal injuries alleged to have been caused by the negligence of the railway company. He and other members of his father's family were traveling on a highway parallel with the railroad, in two wagons drawn by teams of mules. The teams were traveling close together; the front one was driven by his father, and the rear one by a young sister. His mother was walking near the heads of the rear team on the side next to the railroad, and he was walking on the other side, just behind the front wagon. They met a freight-train of the railroad company which was then approaching the station of Charleston. The engineer gave one long blast of the whistle as a signal that the train was approaching Charleston, and the conductor responded with a signal which meant to go ahead and not stop at that station. The engineer then replied with two short blasts to indicate that he had received and understood the conductor's signal. The two short blasts were given just as the locomotive had passed opposite the rear mule team, and these blasts frightened that team so that they jumped to one side and ran away, knocking John Walkenshaw down and severely injuring him. He alleged that the blasts of the whistle were not warnings or danger-signals; were not given for any crossing or station, nor where whistles are usually sounded; and that they were not necessary to the proper operation of the train, and were given without due regard to the rights of himself and other travelers upon the highway. The trial resulted in a verdict against the company for $ 2100, but, in answer to special interrogatories, the jury found that the engineer in charge was sitting on the opposite side of the locomotive from the teams and did not see them when the whistle was sounded, and had not seen them before that time. It was also found that the whistle was blown in the ordinary way and as such signals are usually given; that it was done by the engineer in an attempt to perform his duty; and the only fault attributed to him was that it was not done at the proper place.
It is rightly contended that under the evidence and the findings of the jury the judgment should have been rendered in favor of the railway company. The signals were given in the usual way, and for a necessary and lawful purpose. Those in charge of the train were not aware that plaintiff or the team that injured him were in the vicinity when the signal was given, and, of course, did not know that he was endangered by it. The trainmen were required to keep a lookout along the railroad-track and at the crossings for persons, animals and things upon or approaching the railroad-track, but they were not required to look out for persons traveling on parallel highways where there were no crossings. It is well known that in the operation of trains it is necessary that whistles be frequently sounded, and other signals given. Those who established the highway knew that such signals were incident to the operation of trains, and those who used it had a right to expect signals to be given whenever the business of the road required. The highway having been located there, the railway company had a right to assume that it might operate its railroad in the ordinary manner and give the usual and necessary signals. Since the blowing of the whistles is not negligence per se, it devolved upon the plaintiff to show that it was unnecessarily and negligently done. As the trainmen did not see or know of the team before the whistle was blown, wilful negligence cannot be imputed to them. It is argued that it was the duty of the engineer to have known whether there was a team near by liable to be frightened before sounding the whistle. Whatever may be the rule at and near stations and public crossings, it is clear that the railroad company is not required to be on the lookout for teams on parallel highways remote from stations and crossings.
In Bailey v. Hartford & Conn. Valley R. R. Co., 56 Conn. 444, 16 A. 234, it was held that when a railroad is lawfully located near a highway the railroad company has a right to operate its road in the usual and ordinary manner, and to give the usual and proper signals of danger, without incurring liability for injuries caused by frightened horses on the highway.
The supreme court of Massachusetts had before it the question whether trainmen must be on the watch for persons upon a contiguous highway. The plaintiff was driving a horse along...
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