The Chicago v. Kennedy

• Decision Date: 01 January 1896
• Docket Number: 47
• Court: Kansas Court of Appeals
• Parties: THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. FRANK KENNEDY, by William Kennedy, his next Friend

43 P. 802

2 Kan.App. 693

THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. FRANK KENNEDY, by William Kennedy, his next Friend

No. 47

Court of Appeals of Kansas, Northern Department, Eastern Division

January 1, 1896

Error from court of common pleas, Wyandotte county; T. P. Anderson, Judge.

Opinion Filed January 9, 1896.

MEMORANDUM.--Error from Wyandotte court of common pleas; T P. ANDERSON, judge. Action by Frank Kennedy, an infant, by William Kennedy, his next friend, against The Chicago, Rock Island & Pacific Railway Company to recover damages for personal injury. Judgment for plaintiff. Defendant brings the case to this court. Reversed. The opinion herein was filed January 9, 1896.

The statement of the case, as made by GARVER, J., is as follows:

Action to recover damages for a personal injury alleged to have been sustained by the defendant in error, who was the plaintiff below, through the negligence of the plaintiff in error, at a street crossing in Kansas City, Kan. The plaintiff, Frank Kennedy, was a boy 10 years of age at the time of the accident. The jury returned a verdict, upon which judgment was rendered for $ 1,250, in favor of the plaintiff, and also made certain special findings of facts, among them being the following:

On request of the plaintiff-- .

"2. Was the plaintiff, just before and at the time of his injury considering his age and experience, in the exercise of ordinary care? Ans. Yes.

"3. Was the locomotive and train of defendant causing the injury to plaintiff, at the time and place of the injury to plaintiff, running at a rate of speed to exceed six miles an hour? A. Yes."

"6. Was the plaintiff's view obstructed by the cars upon the side-track at the time and place where he was injured so that he was prevented from seeing the approach of said locomotive or train? A. Yes.

"7. Was there any signal or warning given by those in charge of the locomotive and train of its approach at the crossing where the plaintiff was injured? A. The jury cannot determine."

On request of defendant--

"1. How many railroad tracks, running parallel with each other were then at the place where plaintiff was injured which crossed Third street? Ans. Five.

"2. On which of said tracks was the train that injured said plaintiff passing at the time of the accident? A. Second from the north."

"7. Was not the plaintiff familiar with the crossing at the time of the accident, and prior thereto? A. Yes.

"8. Did not the plaintiff know at the time of the accident, and prior to that time, that trains and engines were at all hours of the day passing backward and forth over the crossing? A. Yes.

"9. At and before the time of the accident, did not the plaintiff know that any railroad track was a place of danger? A. Yes.

"10. At the time of the accident, did not the plaintiff know that it was dangerous to attempt to cross the railroad in front of a moving train or engine? A. Yes.

"11. If the plaintiff, at the time he stepped from the north track going south, had looked to the west, how far could he have had an unobstructed view of a train approaching from the west on the track on which the accident occurred? A. Could have seen quite a distance if the train had not been approaching.

"12. Was the plaintiff running or was he walking at the time of the accident? A. Walking fast.

"13. Is it not a fact that the plaintiff, at the time of the accident, was attempting to cross the railroad in front of the engine that struck him? A. He was attempting to cross the track, but did not know the train was approaching.

"14. Did the plaintiff look for an approaching train before attempting to cross the track, at the time of the accident? A. Just as he was going to look, the engine struck him.

"15. If he did look, did he see the approaching train before he attempted to cross the track where he was hurt? A. Not until the train struck him.

"16. If he looked and did not see the approaching train, what prevented him from seeing it? A. Cars on the side-track.

"17. If he did not look for the approaching train before attempting to cross the track, could he have seen it if he had looked after he had crossed the north track? A. Could have seen it if not right onto him."

The railway company alleges error in the trial, and seeks a reversal of the judgment.

Judgment reversed and case remanded.

M. A. Low, and W. F. Evans, for plaintiff in error.

S. C. Miller, and Sherry & Hughes, for defendant in error.

GARVER J. All the Judges concurring.

OPINION

GARVER, J.:

The only act of negligence, under the evidence and findings of the jury, attributable to the railway company is the running of the train which inflicted the injury at a rate of speed prohibited by the ordinances of the city in which the accident occurred. The allegation that warning signals of the approaching train were not given falls to the ground in the face of the finding of the jury that they cannot determine whether or not such signals were given. As it devolved upon the plaintiff to prove that fact, if it existed, such a finding negatives its existence for the purposes of this case. (Morrow v. Comm'rs of Saline Co., 21 Kan. 484.)

At the time of the accident, the city ordinances prohibited the running of railroad trains in said city at a greater speed than six miles an hour. The train in question was being run at a greater speed than was allowable, but what the actual speed was the jury does not say. It is not disputed that a city may, by ordinance, regulate the speed of trains within its limits. It also seems to be a well-settled rule that a violation of such municipal regulation is negligence per se. (A. T. & S. F. Rld. Co. v. Morgan, 31 Kan. 77; Mo. Pac. Rly. Co. v. Pierce, 33 id. 61; Karle v. Railroad Co., 55 Mo. 476; Baker v. Railway Co., 68 Mich. 90; Railroad Co. v. Voelker, 129 Ill. 540; Correll v. Railroad Co., 38 Iowa 120.) Upon this feature of the case, the trial court instructed the jury as follows:

"9. It is negligence on the part of a railroad company to run its trains through a city, incorporated town or village at a rate of speed prohibited by the ordinances of said city, and if a railroad company does so run its trains, and thereby causes injury to a person who is himself in exercise of reasonable care and caution to avoid injury, the company will be liable."

It is contended that this instruction was misleading and erroneous--that it virtually directed the jury to return a verdict against the defendant, if they found that train was running at a greater speed than six miles an hour at the time it struck the plaintiff. In this particular instruction, the court selected a single fact from the evidence, and attempted to state to the jury how it might be made the basis of a right to recover damages. There is always danger in such practice that other essential facts will be overlooked which should be taken into consideration. The act thus conclusively condemned as negligent, and properly so, is of a presumptive or technical character. In this case, the excessive speed of the train may in no manner have contributed to the injury, and, therefore, may have been an entirely immaterial circumstance in the determination of legal liability. Although thus negligent, the company would not be liable unless the proximate cause of the injury was the unlawful speed of the train. (A. T. & S. F. Rld. Co. v. Morgan, 31 Kan. 77; Pennsylvania Co. v. Hensil, 70 Ind. 569; Railway Co. v. Loomis, 13 Ill. 548; Railway Co. v. Wellhoener, 72 id. 60; Railroad Co. v. Stebbing, 62 Md. 504; Stoneman v. Railroad Co., 58 Mo. 503.) The mere fact that the plaintiff was struck by the train which was running at the rate of 8, 10 or 12 miles an hour, and was thereby injured, would not prove that the unlawful increase of the speed of the train was the proximate cause of the injury. It does not necessarily follow that the same accident would not have happened had the speed of the train been within the lawful limit. The court applied this rule in the instruction concerning a failure to ring the bell of the engine, as required by the city ordinances. After giving upon that subject substantially the same instruction that was given as to the speed of the train, the court said:

"The neglect of ringing the bell of an engine while passing through a city, incorporated town, or village, in violation of its ordinances, is not of itself such negligence as will justify a recovery of damages to a person injured upon the track; to entitle the plaintiff to recover for such injury, it must appear from the evidence that the injury was the result of such omission to ring the bell."

The court neglected to add a similar qualification with reference to the speed of the train, and thus, by contrast with the other instruction, emphasized the objectionable feature of the one of which complaint is made. In the absence of such qualification, we think it is open to the objection that its natural tendency was to mislead the jury to think that the negligent running of the train at an unlawful speed was, of itself, sufficient to fix the liability of the company, without any inquiry to determine whether such violation of the ordinances was the proximate cause of the injury.

Counsel for plaintiff in error next urge, with much force and earnestness, that the findings show such contributory negligence on the part of the plaintiff as precludes any recovery by him, even conceding that the trainmen were also negligent. If the plaintiff had been a person of maturer years and judgment, this contention of counsel would have to be sustained. The plaintiff attempted, apparently, to cross the railroad-tracks without looking or listening with such care as is required of a foot traveler under similar circumstances; and, had he...