The Chicago v. Reardon

• Decision Date: 01 June 1895
• Citation: 40 P. 931,1 Kan.App. 114
• Court: Kansas Court of Appeals
• Parties: THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. MICHAEL REARDON

40 P. 931

1 Kan.App. 114

THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. MICHAEL REARDON

Court of Appeals of Kansas, Northern Department, Eastern Division

June 1, 1895

Opinion Filed July 6, 1895.

MEMORANDUM.--Error from Wyandotte district court; O. L MILLER, judge. Action by Michael Reardon against the Chicago Rock Island & Pacific Railway Company. Judgment for plaintiff; defendant brings error. Reversed. The material facts appear in the opinion herein, filed July 6, 1895.

Judgment reversed and case remanded.

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

Byron Sherry, and Roland Hughes, for defendant in error.

GARVER J. All the Judges concurring.

OPINION

GARVER, J.:

This was an action to recover damages for a personal injury to the plaintiff, alleged to have been caused by the negligence of the defendant. The allegations of the petition showing negligence are as follows:

"That while the plaintiff was riding a mule along and upon a certain public highway near the town of Muncie, in said county, and at a point on said highway within about 25 feet of the track of said railway, and near the said moving engine and cars, the engineer in charge of said locomotive, wantonly, recklessly and negligently, and without any just cause or reason therefor, caused to be sounded a loud, shrill whistle, which so alarmed and frightened the said mule that plaintiff was riding, that it became ungovernable to such an extent, that it turned and backed upon said track with plaintiff, whereby, and by reason whereof, the plaintiff was then and there run upon and struck by said locomotive, . . ."

The injury occurred at the crossing of the public highway by the railway near Muncie station, and about one-quarter of a mile from the plaintiff's residence, where he had been living for a number of years. On the evening of the day of the accident, the plaintiff, riding a mule, was traveling on the public highway from his house west of the crossing, intending to visit his sister a short distance east therefrom. At this point the highway runs east and west, the railroad crossing it at an angle of about 45 degrees, and running from northeast to the southwest. There was nothing to obstruct the view of approaching trains; and, as plaintiff approached the crossing from the west, he saw a freight train coming from the northeast, running at the speed of about 22 miles an hour. The mule was going upon a walk at the rate of about three miles an hour. When the plaintiff reached the crossing, the train had arrived at a distance of about 240 feet therefrom, and as plaintiff moved across the track and the train approached still nearer, he was for a time hidden from view of the engineer by the front of the engine. According to the testimony of the plaintiff himself, he had gone from 15 to 20 feet across the track, when two or three loud whistles were sounded from the engine, scaring the mule, and causing it to turn around and go back upon the crossing, where it and the plaintiff were struck by the train. The engineer and other trainmen testified that the whistles sounded were for brakes, and were given about the time plaintiff was struck by the train. Other witnesses who were near by testified to there being two or three short, sharp whistles at or near this crossing, but did not give the situation of the plaintiff at the time. There was a whistling post at no great distance on each side of the crossing, but it was not necessary or customary for trains to whistle at the crossing, unless in case of danger. The train consisted of 28 or 30 freight cars, and depended for stopping on hand-brakes, the train not being supplied with air-brakes. It was stopped a very short distance west of the crossing. There was no testimony tending to show that the whistling at or near the crossing was done for any improper purpose, or in a reckless or wanton spirit, unless such facts may be rightly inferred from the mere fact that the whistle was sounded at an unusual place, and, evidently, because of the plaintiff's proximity to the train. The fact of the plaintiff's injury is undisputed, nor is there any claim that the sum of $ 2,000, the damages allowed by the jury, is excessive. The only question is as to a liability for any amount whatever.

In passing on the defendant's motion for a new trial, the court said:

"I might submit this case to a hundred juries of Wyandotte county, and their verdict would be about the same as this one. While I am clearly of the opinion that the plaintiff is not entitled to recover, and if it were submitted to me, without a jury, I would not hesitate for one moment to render judgment in favor of the defendant; but as this case has been submitted to a jury, and they have rendered their verdict in favor of the plaintiff, I will not disturb it. Although I am firmly of the opinion that the supreme court will reverse this judgment, and render a judgment in favor of the defendant, yet I do not think it would do any good to try the case over in this court. The motion for a new trial will be overruled."

Notwithstanding the court expressed its disapproval of the results of the deliberation of the jury in this forcible language, it overruled the motion for a new trial, one of the grounds of which was that the verdict of the jury was not sustained by sufficient evidence, and entered judgment in favor of the plaintiff on the verdict. In this ruling, the court seems to have overlooked what the supreme court of this state has so frequently and clearly laid down as the duty of the trial judge when the correctness of the verdict of a jury is challenged, and the judgment of the court...