The Atchison v. Wilkie

• Decision Date: 08 June 1907
• Docket Number: 15,092
• Citation: 90 P. 775,77 Kan. 791
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. JAMES A. WILKIE

90 P. 775

77 Kan. 791

THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. JAMES A. WILKIE

No. 15,092

Supreme Court of Kansas

June 8, 1907

Decided January, 1907.

Error from Dickinson district court; OSCAR L. MOORE, judge.

Judgment affirmed.

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

Edward C. Little, for defendant in error.

OPINION

Per Curiam:

This is an action for damages for injuries received at a railway-crossing on one of the public streets of Abilene. The jury found a verdict for $ 825 in favor of plaintiff, and among other special findings, returned the following:

"(6) Ques. Was not the engine moving very slowly at the time the plaintiff's horse became frightened? Ans. Yes."

"(8) Q. On the night in question, did the trainmen make up the train at Abilene in the usual and proper manner? A. No.

"(9) Q. In making up the train on the occasion of the accident to the plaintiff was it necessary to run the engine across Buckeye avenue? A. Yes."

"(12) Q. If you find for the plaintiff, then state what negligent act or omission resulted in the injury to the plaintiff. A. By not ringing bell.

"(13) Q. Did the plaintiff see the engine which he claims frightened his horse before he had reached the south side-track and before he attempted to cross the tracks? A. Yes."

Buckeye avenue runs north and south. Three tracks of the railway company cross this street leading east. The north track runs a little southeast. It was almost dusk, about 7: 30 in the evening, when plaintiff, who was driving a horse and buggy approached the crossing from the south. Plaintiff's evidence tended to show that at a safe distance he stopped, looked and listened, and, seeing the engine standing still, with the pilot near the west side of the street, attempted to drive across the street in front of it, not expecting it to be moved. There was evidence that when he was on the tracks the engine started east on the north track, suddenly, without warning, coming directly toward his horse, which became frightened, and, throwing him out, caused the injuries for which he recovered.

The principal contention is that the court erred in not rendering judgment on the special findings. Plaintiff was not guilty of contributory negligence per se because he attempted to drive over a public crossing in front of an engine which he testifies was standing still, with no sign or indication of an intention on the part of the enginemen to move it. ( Railway Co. v. Dawson, 64 Kan. 99, 67 P. 521.) In volume 2 of Thompson's Commentaries on the Law of Negligence, section 1677, it is said:

"The attempt of a traveler to cross in front of an engine or a train standing near the crossing is not generally so inherently dangerous as to preclude a recovery of damages, if the engine or train is unexpectedly started forward upon him, but in most such cases the question whether he has been guilty of negligence will go to the jury, especially where it moves upon him without giving any signals."

(See, also, 3 Ell. Railroads 1770, note 4.)

The authorities relied upon by the railway company are largely those in which the train was either approaching the crossing or the engine was fired up and manned, with all appearances of being about to move over the crossing.

It is said that there was no occasion for ringing the bell because plaintiff saw the engine and was bound to take notice that it might be moved. But was he not justified in assuming that, under the circumstances, it would not be moved over the crossing without some signal being first given? There is no statute requiring the giving of signals upon approaching a crossing of a public street in a city, but the duty to give such signals often rests upon those in charge of an engine or train before starting it across the street.

"It is a sound conclusion that it is the duty of the engineer in charge of a train standing still, before starting his engine across a street, not only to give timely warning of his intention, but also to see whether his train will not be likely to strike a traveler or frighten his horses." (2 Thomp. Com. Law of Neg. § 1568.)

In the present case, while the engine was standing still several vehicles were using the crossing. Plaintiff had started to cross before the engine moved and must have been in plain...