The Chicago v. Wheeler

• Decision Date: 08 May 1909
• Docket Number: 16,025
• Citation: 80 Kan. 187,101 P. 1001
• Court: Kansas Supreme Court
• Parties: THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. LAURA WHEELER et al., as Heirs, etc

101 P. 1001

80 Kan. 187

THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. LAURA WHEELER et al., as Heirs, etc

No. 16,025

Supreme Court of Kansas

May 8, 1909

Decided January, 1909.

Error from Clay district court; SAM KIMBLE, judge.

STATEMENT.

THIS action was begun by Mitchell Wheeler to recover from the Chicago, Rock Island & Pacific Railway Company for four head of cattle killed at a railway-crossing. At the first trial the plaintiff obtained a judgment against the railway company, which was reversed because of the erroneous admission of evidence and the submission to the jury of questions not embraced within the pleadings. (Railway Co. v Wheeler, 70 Kan. 755.) In the second trial the jury found upon evidence that the whistle on defendant's locomotive was not sounded eighty rods from the crossing, as the law requires, and that, if it had been, Morissette plaintiffs' employee, who was driving the cattle, could have heard it in time to prevent the cattle from going on the track. On the kind of care exercised by Morissette, before and at the time of the collision, the following answers to special questions which are deemed to be material were returned, although not given in the order in which they appear in the record:

"(15) Ques. How far south of the crossing where the cattle were killed, on the highway between sections 9 and 10, could a train be observed approaching said crossing from the southeast for a distance of two or three miles? Ans. Seventy-five yards."

"(5) Q. How far south of the crossing where the collision occurred was Morissette when he first saw the train which struck the cattle approach? A. Seventy-five or one hundred yards."

"(16) Q. How far south of the crossing where the collision occurred was Mr. Morissette when he first looked to the southeast for a train? A. Seventy-five or one hundred yards.

"(17) Q. What did Mr. Morissette do, if anything, in looking for a train when he reached a point on said north-and-south highway where a train could be seen approaching from the southeast to ascertain whether or not such train was coming? A. Looked back from the southwest corner of section 10."

"(21) Q. Under the conditions as to light or darkness existing at the time and place in question, for what distance to the southeast could a train be seen approaching the crossing where the cattle were killed by a traveler on the north-and-south highway between sections 9 and 10 after he had reached a point north of the buildings at the southwest corner of said section 10 where his view was unobstructed? A One-half mile."

"(6) Q. How far from the crossing where the train struck the cattle was the train when Mr. Morissette first observed it? A. Forty rods."

"(30) Q. About what distance were the leaders of the herd of cattle ahead of Mr. Morissette, the driver, as they approached the crossing where the injury occurred? A. Seventy-five or one hundred yards.

"(31) Q. Were the cattle driven by the witness, Morissette, as they approached the crossing, driven in a string along the road? A. Yes.

"(32) Q. If your answer to the last question is 'Yes,' state about how long the string of cattle was as they approached the crossing where the cattle were killed. A. Seventy-five or one hundred yards."

"(18) Q. As Mr. Morissette approached the crossing in question on the north-and-south highway between sections 9 and 10, did he at any time stop, look and listen for an approaching train from the southeast? A. No."

"(4) Q. Is it not a fact that ten, fifteen or twenty of the cattle which Mr. Morissette was driving at the time of the collision had passed over the defendant's railway track at the crossing where the accident in question occurred before Mr. Morissette made any effort to ascertain the approach of the train which struck the cattle? A. Yes."

"(9) Q. How did Mr. Morissette get from the place where he was when he first observed the train up to the crossing where the cattle were struck? A. Rode part way and balance on foot.

"(10) Q. What did Mr. Morissette do after he arrived at the crossing in the way of getting the cattle off the track? A. Made an effort to-keep them back."

"(26) Q. As the train in question approached the crossing where the collision occurred, did the plaintiff's agent, Morissette, cause the cattle in question to be divided, a part on the north side and a part on the south side of the track in question? A. Yes."

"(33) Q. Did Mr. Morissette see the approaching train as soon as it reached the railroad-crossing over the wagon-road running east and west along the south side of section 10? A. He did not.

"(34) Q. Did Mr. Morissette see the approaching train when it was as far as eighty rods southeast of the place where the cattle were struck? A. He did not."

In connection with the special findings the jury returned a general verdict for $ 180.75, from which the plaintiffs offered to remit $ 2. Error is assigned on the refusal of the court to direct a verdict in favor of the railway company, and to render a judgment in favor of the company on the special findings returned by the jury.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS--Railway-crossing--Notice of Danger. The law regards a railway-crossing as a place of danger, and a view of a railway track as a warning of danger to an approaching traveler.

2. RAILROADS--Injury to Stock at a Crossing--Contributory Negligence. One who drives a herd of cattle along a highway for a distance of eighty-seven rods, and upon a railway-crossing with which he is familiar, without taking any precautions to ascertain whether there is a train in dangerous proximity, is guilty of contributory negligence which will bar a recovery for cattle killed in a collision which might have been avoided by the exercise of care proportionate with the perils of the situation.

3. RAILROADS--Same. The fact that there were obstructions which obscured the view of the railway track in one direction made it the duty of the driver to take other reasonable precautions to ascertain whether there was a train approaching before permitting the cattle to go upon the crossing, and under the circumstances of the case it is held, that the driver in question failed to exercise due care for the protection of the cattle.

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

F. B. Dawes, and R. C. Miller, for the defendants in error.

OPINION

JOHNSTON, C. J.:

The defendant's railway cuts off the southwest corner of a section of land near Morganville and runs diagonally from the southeast to the northwest, intersecting highways on the south and the west sides of the section. The south crossing is forty-seven rods east of the southwest corner of the section, and the west crossing, where the cattle were killed is. eighty-seven rods north of the southwest corner of the...