The Chicago v. Wheeler

• Decision Date: 11 February 1905
• Docket Number: 13,932
• Citation: 70 Kan. 755,79 P. 673
• Court: Kansas Supreme Court
• Parties: THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. MITCHELL WHEELER

79 P. 673

70 Kan. 755

THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. MITCHELL WHEELER

No. 13,932

Supreme Court of Kansas

February 11, 1905

Decided January, 1905.

Error from Clay district court; SAM KIMBLE, judge. First

Judgment reversed and case remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS--Injury at Crossing--Pleading and Proof. A petition containing general averments of negligence "as hereinafter more specifically mentioned and described" presents only such issues as are found in the specific allegations.

2. RAILROADS--Speed Held Not Negligence. The averment that a passenger-train was running at a rate of speed of about sixty miles an hour is not per se an allegation of negligence.

3. PRACTICE, DISTRICT COURT--Special Findings. It is error to direct the jury to find upon issues not raised by the pleadings or upon the trial.

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

F. P. Harkness, and George L. Davis, for defendant in error.

CUNNINGHAM J. All the Justices concurring.

OPINION

CUNNINGHAM, J.

The defendant in error had judgment against the Chicago, Rock Island & Pacific Railway Company in the court below for damages because of the killing of some cattle by a train on a crossing. Omitting the more formal portions, the negligence of the company was stated in the following words of the petition:

"That the line of railway owned and operated by the said defendant as aforesaid runs diagonally through and near the southwest corner of section 10, township 7, range 2 east, in the said Clay county, Kansas; that there are public highways running upon and along the south and west lines of said section 10 both of which highways said line of railway intersects and crosses; that on the 28th day of December, 1902, and at an hour when no trains of the defendant were due to pass said points, to wit, at about the hour of 5:45 P. M. of said day, said plaintiff, by his agent and employee, A. Morissette, jr., was engaged in driving a large herd of cattle, consisting of about 112 head, along the highway on the south side of said section 10, thence north along the said highway on the west side of said section 10 and over and across the railroad-crossings above mentioned; and after having crossed the railroad on the south side of said section 10, and while proceeding to drive said herd over and across said railroad on the west side of said section 10, the defendant company carelessly, negligently and wilfully ran one of its trains upon and over said herd of cattle, thereby killing, maiming and injuring several of them, as hereinafter more specifically mentioned and described; that the train of said defendant so causing said injury and damage was about one hour late, or behind its schedule time, was running northwest at a high rate of speed, to wit, about sixty miles an hour, and the defendant's engineer in charge of said engine attached to said train and the defendant's employees having charge and control of said train so carelessly, negligently and wantonly operated said engine and train while approaching said crossing on said public highway as to cause the injuries and damage herein complained of, without any fault or negligence on the part of this plaintiff, or his agent or employee; that, approaching said crossing from the southeast, said line of railway, for a distance of about three miles, is practically on a straight line, and the said crossing was in plain view of the engineer approaching from the southeast for a long distance; that there are three highway crossings within a distance of three miles southeast from the point where the said injuries were committed, and plaintiff avers that no whistle was sounded within eighty rods from the crossing where said injuries were caused, nor was any bell rung for said crossing, nor was any whistle sounded for the highway crossing on the south side of said section 10, nor at the highway crossing next southeast of the same; that when plaintiff's said agent and employee, A. Morissette, jr., approached said highway crossing on the south side of said section 10, and before driving said herd of cattle across defendant's railroad-track at that point, he stopped, looked and listened for possible approaching trains, and was unable to hear or see anything indicating a train approaching on said railroad from either direction; that he used like care in approaching the crossing on the west side of section 10; but defendant's...