The Chicago v. Martin

• Decision Date: 11 June 1898
• Docket Number: 10381
• Citation: 59 Kan. 437,53 P. 461
• Parties: THE CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY, AND S. H. H. CLARK et al., Receivers of the Union Pacific Railway Company, v. LISSA MARTIN, Administratrix
• Court: Kansas Supreme Court

53 P. 461

59 Kan. 437

THE CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY, AND S. H. H. CLARK et al., Receivers of the Union Pacific Railway Company, v. LISSA MARTIN, Administratrix

No. 10381

Supreme Court of Kansas

June 11, 1898

Decided January, 1898.

Error from Clay District Court. R. B. Spilman, Judge.

Judgment affirmed.

M. A Low and W. F. Evans, for C. R. I. & P. Rly. Co.

A. L Williams, N. H. Loomis and R. W. Blair, for S. H. H. Clark et al.

F. B Dawes, for defendant in error.

OPINION

ALLEN, J.

This action grows out of a collision of a freight train of the Chicago, Rock Island & Pacific Railway Company with one of the Union Pacific Railway Company, near Linwood in Leavenworth County, on the second of January, 1894, by which William Martin, the plaintiff's intestate, was killed.

At the time of the collision, six trains were moving eastward over the Union Pacific Railway, in close proximity to each other. They were designated as Union Pacific number 14, Rock Island first 30, Union Pacific first 12, Rock Island second 30, Union Pacific second 12, and Rock Island number 32. Union Pacific number 14 was in the lead, and the others followed in order as above stated. Martin was a passenger in charge of a car load of stock on Union Pacific first 12. All these trains were running an hour or more behind their schedule time. The collision occurred at about 5:30 in the morning, at a point about three-quarters of a mile west of Linwood station. Rock Island train second 30 ran into the rear end of Union Pacific first 12. Westward from the point of collision, the track is straight for a distance of 960 feet; thence there is a slight curve to the right for about 306 feet. From the end of this curve it is a tangent for about 6500 feet. The collision occurred before daylight on a clear starlight night.

It appears that, the trains of the Rock Island Company were operated over the line of the Union Pacific Company, between Topeka and Kansas City, under some kind of a lease, which was not introduced in evidence. Rules governing the movement of trains were promulgated by the Union Pacific Company, and the telegraph operators and train dispatchers were employed by that company; but the trainmen on the Rock Island trains were employed by the Rock Island Company. The plaintiff charged negligence in the management of both the colliding trains. The fact that the plaintiff's intestate was killed in the collision was conceded, and there was no serious dispute over the proposition that it resulted from the negligence of the employees in charge of one or the other or both of the trains. Each defendant, however, denied its own liability, and sought to cast the responsibility on the other. The jury rendered a verdict against both for $ 10,000, on which judgment was entered. They also returned answers to special questions submitted on behalf of each company.

In answer to questions submitted on behalf of the Rock Island Company, the jury found most of the facts as above stated, and also that as Union Pacific train number 14 passed, it left a burning fusee at or near the west end of the curve above mentioned as a signal to the following train to stop; that Rock Island train number first 30 answered the signal, and in turn also placed a burning fusee at or near the same point, as a signal to Union Pacific train number first 12 to stop; that Quick, the engineer of the last mentioned train, saw the fusee at a distance of a mile and a half away; that it was his duty to answer the signal by two short blasts of the whistle; that he did not answer it in any manner; that if it had been answered, it would then have been the duty of the conductor and rear brakeman to at once ascertain what signal he was answering; that they could have ascertained what it was in time to protect the rear end of their train by proper signals; that the rules of the Company required an engineer seeing a burning fusee on the track to bring his train to a full stop before reaching the fusee, and not proceed until it should be burned out; that Quick did not stop his train, but ran on over the fusee in violation of the rules; that if Quick had performed his duty by stopping and giving the signals, and if the conductor and rear brakeman had given proper signals to protect the rear of the train the persons operating the second section of Rock Island No. 30 could have seen these signals in time to have avoided the collision; that Union Pacific first 12 also ran over and exploded two torpedoes which had been placed on the track as additional warning; that on approaching the burning fusee, and before passing over the same, the trainmen on the Union Pacific first 12 did not send out a flagman nor give any signal to protect the rear of the train from a collision with the following train; that the rules of the Union Pacific Railway Company prescribe the manner in which signals should be used and obeyed by all trains on its road between Kansas City and Topeka, and that, while on the Union Pacific track, the persons employed on the trains of the Rock Island Company received all orders for the government and operation of the trains from the receivers of the Union Pacific Company.

In answer to special questions submitted by the receivers, the jury found that the collision occurred about 1266 feet east of the west point of the curve before mentioned; that the track was straight from the west point of the curve for a distance of about a mile and a quarter; that an engineer on a locomotive situated at the west end of this straight piece of track could have had an unobstructed view of the tail lights on a train located at any point east of him on the straight piece of track; and that the employees of the Rock Island company on train second 30 could have had an unobstructed and continuous view of the tail lights of Union Pacific train number first 12 for the distance of about a mile and a half west of the point of collision; that the Rock Island train could have been stopped within from 900 to 1100 feet from the place where the engineer first saw the tail lights of the Union Pacific train; that he saw the tail lights when within about 1400 feet of the train; that both the front and rear brakemen of the Rock Island train saw the tail lights when the trains were still further apart, and that the train ran twice its length after the rear brakeman saw the tail lights before he called the attention of any one to the train ahead; that the Union Pacific train was running at the rate of about ten miles an hour, and the Rock Island train about eighteen miles an hour at the time of collision; that within a couple of seconds after the engineer of the Rock Island train saw the tail lights ahead of him he saw a lantern swung across the track from the rear of the Union Pacific caboose, which was a signal to him to stop; that he did not answer this signal; that Duplessis, the Rock Island engineer, knew that Linwood was a station where trains were in the habit of taking water, and where telegraphic orders for the movement of trains were given; that he knew three trains were just preceding him, one or all of which were liable to stop at Linwood; that it was the duty of the train men in charge of the Rock Island train to approach Linwood station carefully, and with their train under control; that they were chargeable with negligence, in the operation of the train, which contributed directly to the collision and the death of the plaintiff; that the train was in charge of Rock Island employees, pulled by a Rock Island locomotive, and that the officials of the Union Pacific did not have anything to do with the movement of the train, other than giving orders directing when the train should leave stations; that the Rock Island Company had, and the Receivers had not power to employ and discharge the trainmen operating Rock Island trains over that track.

Separate petitions in error, charging numerous errors, are filed in this court by the Rock Island Company and the Receivers of the Union Pacific Company, and elaborate briefs are presented on behalf of each discussing at length the errors alleged. The points appearing worthy of mention in the opinion will be discussed in the order of their statement in the briefs, beginning with those urged by counsel for the Rock Island.

The first complaint is of the admission, as a deposition of the absent witness, A. T. Palmer, of the affidavit for a continuance, made by R. W. Blair. The statements in the affidavit tended to exculpate the employees in charge of the Union Pacific train from the charge of negligence, and to prove that the engineer in charge of the Rock Island train could have seen the tail lights of the Union Pacific train in time to have prevented the collision. Some of the statements are in the form of conclusions, and it is urged that they...