The Chicago v. Lacy

• Decision Date: 10 October 1908
• Docket Number: 15,663
• Citation: 97 P. 1025,78 Kan. 622
• Court: Kansas Supreme Court
• Parties: THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. P. C. LACY

97 P. 1025

78 Kan. 622

THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. P. C. LACY

No. 15,663

Supreme Court of Kansas

October 10, 1908

Decided July, 1908.

Error from Shawnee district court; ALSTON W. DANA, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

PERSONAL INJURIES--Wanton Negligence--Evidence--Proximate Cause. Plaintiff's intestate was riding in the caboose of a freight-train, with the permission of the conductor, but without having paid or offering to pay any fare, and under such circumstances that the railway company owed him no duty except not to injure him wilfully or wantonly. While the train to which the caboose was attached was standing at a station, in the daytime, a freight-train following ran into the caboose, demolishing it, and the deceased received injuries from which he died. In an action against the railway company to recover for his wrongful death, on the ground that the injury was caused by the reckless and wanton negligence of the company's employees, held: (1) That the fact that a collision occurred is not prima facie evidence that it was caused by reckless or wanton negligence. In such a case before the railway company can be held liable there must be some fact or circumstance in evidence from which the natural and reasonable inference arises that the injury was caused by the reckless or wanton negligence of the employees of the company. (2) The evidence in this case examined and held not sufficient to justify a recovery on the ground that the injury was caused by the reckless or wanton negligence of the employees of the defendant. (3) Upon the findings of the jury that the engineer of the second train saw the first train standing on the track at the station when his train was more than a mile and a half distant, no recovery can be based upon the failure of the crew in charge of the forward train to send back a flagman to warn the rear train, as such failure could not have been the proximate cause of the injury.

M. A. Low, and Paul E. Walker, for plaintiff in error.

Lee Monroe, W. F. Schoch, and George A. Kline, for defendant in error.

OPINION

PORTER, J.:

This action was brought by the father of M. J. Lacy to recover damages for the death of his son. The jury returned a verdict in favor of the plaintiff for $ 1995, and judgment was rendered thereon, which the railway company seeks to reverse.

The facts which are not disputed are that on the evening of March 30, 1904, the deceased, who was an experienced railroad man, requested a conductor in charge of a through freight-train which was about to leave Dalhart, Tex., for Liberal, Kan., to allow him to ride free of charge from Dalhart to Liberal. The conductor refused his request, and told him that the rules of the company did not permit any one to be carried on that train. The deceased then asked the conductor if he did not recognize and carry free of charge members of the brotherhood of railway trainmen. The conductor told him that if one of the brakemen who belonged to that order would vouch for his membership therein he would carry him. On the assurance of one of the brakemen that Lacy was a member of the order the conductor allowed him to enter the caboose.

The train upon which the deceased was riding was the first of two freight-trains running under manifold copies of the same orders from Dalhart to Liberal, and beyond. The rear train followed about ten minutes behind the forward train. The trains had common meeting points during the night, and the crews of both expected to take breakfast at Liberal. The first train reached Liberal at eleven minutes past seven o'clock in the morning, which was after daylight. It stopped on the main track, and the crew went to breakfast. While this train was standing on the main track at the station the rear train ran into it, demolished the caboose in which Lacy was asleep, and he received injuries which resulted in his death.

The petition alleged that Lacy's death was directly caused by the gross and wanton negligence and reckless conduct of the employees of the defendant in charge of the two trains. The negligence alleged is: (1) That the crew in charge of the forward train failed to send back a flagman to warn the rear train; (2) that the engineer of the rear train failed to give warning of the approach of his train, and recklessly and wantonly ran his engine into the caboose.

The errors complained of are the refusal to sustain a demurrer to the plaintiff's evidence, the refusal to give a peremptory instruction directing a verdict in favor of the defendant on the special findings, and the denial of the motion for a new trial.

The jury in answer to special questions found that Lacy had been a brakeman and a conductor on other roads for a number of years previous, and that he requested the conductor to carry him free of charge; that he neither paid nor offered to pay fare, nor presented a ticket, pass or permit, and intended to ride without the payment of fare; that the train was one on which passengers were not carried, under the rules and regulations of the company; that the conductor had no right to carry him free of charge or on the train in question; that Lacy had no reasonable cause to believe that the conductor had such authority; and that he had no right to be on the train.

The railway company claims that the deceased was a trespasser. On the other hand, it is claimed that he was on the train by the permission of the conductor, and was therefore a licensee. For the purpose of this case, at least, the distinction is unimportant, for there was no claim in the petition or on the trial that the relation of carrier and passenger existed between the railway company and the deceased. The action was brought, and the trial proceeded, upon the theory that the railway company could only be liable for such injuries as were occasioned by the reckless or wanton negligence of its servants. The jury were instructed that no liability was claimed in consequence of common, or ordinary, negligence. As observed, the jury made a finding that the deceased had no right to be upon the train. The instructions told the jury that, if they so found, the railway company owed him no duty except to abstain from recklessly or wantonly injuring him. The vital question in the case, therefore, is whether there is sufficient evidence to justify a recovery on the ground that Lacy's death was caused by the reckless or wanton negligence of the employees of defendant.

The first claim of negligence--the failure of the employees of the forward train to send back a flagman to warn the second train--is entirely eliminated by the special findings. The jury found, upon evidence about which there can be no dispute, that it was not the custom of trains stopping at Liberal in the daytime to guard the rear by sending back a flagman, for the reason that the track from the west is straight for a mile and three-quarters, and slightly up grade, and that a train standing at the station...