The City of Fort Scott and The Kansas City v. Peck

• Citation: 5 Kan.App. 593,49 P. 111
• Decision Date: 09 June 1897
• Docket Number: 171
• Court: Court of Appeals of Kansas
• Parties: THE CITY OF FORT SCOTT AND THE KANSAS CITY, FORT SCOTT & MEMPHIS RAILROAD COMPANY v. C. G. PECK, Administrator of the Estate of D. O. Peck, deceased

49 P. 111

5 Kan.App. 593

THE CITY OF FORT SCOTT AND THE KANSAS CITY, FORT SCOTT & MEMPHIS RAILROAD COMPANY v. C. G. PECK, Administrator of the Estate of D. O. Peck, deceased

No. 171

Court of Appeals of Kansas, Southern Department, Eastern Division

June 9, 1897

June 9 1897.

Error from Allen District Court. Hon. L. Stillwell, Judge. Affirmed.

Judgment affirmed.

Wallace Pratt, Chas. W. Blair, W. C. Perry, W. P. Dillard, and J. H Crider, for plaintiffs in error.

J. D McCleverty, and J. S. West, for defendant in error.

OPINION

MILTON, J.

This action was brought by C. G. Peck, as administrator of the estate of his son, D. O. Peck, deceased, under section 4518, General Statutes of 1889, against the City of Fort Scott and the Kansas City, Fort Scott & Memphis Railroad Company, jointly, to recover damages which said plaintiff alleged he had sustained by reason of the death of his son.

At about three o'clock A. M., on November 30, 1890, D. O. Peck was driving an omnibus going east on Third Street in Fort Scott, taking a passenger from the Missouri, Kansas & Texas Railroad depot. The vehicle was nine feet two inches in height. Over and across Third Street, which extends east and west, was a trestle bridge, built in 1870 or 1871, which formed a part of the railroad of the litigant Company. At the point where the usual passage of wagons took place this trestle bridge was nine feet and six inches above the surface of the street on the west side, and nine feet above on the east side. The Railroad Company constructed a fill across this street in 1869, but the next year, on demand of the City, cut an opening through the embankment and put in this structure, which we shall refer to as the trestle, and removed the fill down to, or slightly below, the natural surface of the ground and down to the grade line established by the city engineer. About fifteen feet east of this trestle the Railroad Company dug a ditch for drainage purposes and covered it with a small wooden bridge. Some years after this bridge was built it was raised from six to ten inches. The trestle was several times repaired by the Company, and there was evidence to the effect that, in uncovering the timbers, quantities of dirt were thrown into the street under the trestle thus filling up and raising the street somewhat, under the trestle; and there was evidence to show that on one or two occasions employees of the City had scraped dirt from the surface of the street under the trestle. The land surface is such in the vicinity of this trestle that drainage is not easy, and the evidence is conflicting as to the possibility of lowering the street under the trestle, and at the same time leaving it passable in wet weather.

Deceased was sitting in the driver's usual seat on the top of the omnibus, when his body was caught between the timbers of the trestle and the top of the omnibus, crushing him so that he died in a very few minutes after the injury was received. No one saw the accident. The passenger, Mr. Hubbart, a postal clerk, says the vehicle stopped, and he heard a crash on top of it; that he immediately got out and found the driver lying on top of the omnibus between the central portion of the roof, which is the highest part of the vehicle, and one of the side railings, between the two stringers of the trestle, with his face up and his feet near the driver's seat. He was struggling as if dying. In some way Mr. Hubbart got him to the ground; and, shortly afterwards other persons came, but the injured man died before he could be taken to his room. He was conscious after the injury, and in answer to a question by Mr. Hubbart as to whether he realized where he was, said that he did but was too sick to talk.

The night was bright and clear, the moon being almost at its full. Third Street, where he passed over it from Scott Avenue to the trestle, is a moderate decline for about four blocks, and there was nothing to obstruct a view of the trestle. The railroad at this point is the dividing line between Fort Scott proper and East Fort Scott, the business portion of the city being west of the railroad. Deceased had lived for years in East Fort Scott, and had passed under the trestle very many times. He had driven his own transfer wagon for a long time, and had worked for two years or more for the Terry Bus Company, at different times, being a driver of the baggage wagon mainly, but frequently driving a hack. During the month immediately preceding his death he frequently drove an omnibus. He had often driven a hack or baggage wagon under the trestle, but it does not appear that he had ever passed under there on an omnibus. It was proven that, in order to remove the omnibus on which he was crushed, it was necessary To back it out; and that it had been drawn by the team very hard against the stringer on the east side of the trestle. Several of the bus company employees testified that they were in the habit of "ducking" their heads when driving under the trestle on a hack, although there was no real necessity for so doing. There is nothing to show that the deceased ever did this. Much testimony was received to show that numerous accidents had happened at the trestle to drivers and loads. Third Street was much traveled and its use was necessary for the convenience of a great number of people. There were two other practicable routes from the depot to Hubbart's residence, but the one under the Third Street trestle was considered the best. It was not shown that complaints were made at any time to the City or the Railroad Company in regard to this trestle. Deceased was thirty-one years old and unmarried, but was engaged to be married. His father was fifty-seven years old and a widower, and was temporarily earning one dollar and fifty cents per day and expenses, while deceased was receiving forty-five dollars per month for his work. His estate inventoried only thirty-six dollars. He had given about two hundred dollars to his father in the three years preceding his death, and it had been arranged that after he should marry his father would live with him.

The defendant City alleged in its answer, that, if there was any injury to plaintiff's intestate, it was caused solely by the insufficient height of the trestle of the defendant Company, whose duty it was to place and maintain a suitable crossing at the intersection of its said road and the line of the street. There was a large amount of testimony on this point which will be hereinafter noticed. It was clear from the evidence that both the City, in its corporate capacity, and the Railroad Company had knowledge of the condition of the trestle continuously from the time of its erection to the time of the casualty. The answer of the defendant Company, among other things, averred that, when the City sought to operate said street, it agreed with the Railroad Company that said City would assume all the liability and responsibility of the manner and mode of the construction of the trestle.

At the first trial in Bourbon County a demurrer to plaintiff's evidence was sustained, but it was afterwards set aside and a new trial ordered. Shortly thereafter Hon. J. S. West, one of the plaintiff's attorneys, having been elected judge of that district, the case was sent to Allen County for trial. Verdict and judgment were in favor of plaintiff and against both defendants for two thousand dollars, and the defendants bring these proceedings to reverse that judgment. Objection was made by the defendants to proceeding to trial in Allen County for the alleged reason that the same case was then pending in the Supreme Court upon proceedings brought by defendant to reverse the ruling of the court granting a new trial to plaintiff.

No plea in abatement was filed and no testimony of any kind was offered in support of this objection. It will not, therefore, be considered by this court. See Am. & Eng. Ency. of Law, vol. 8, p. 555, and cases there cited.

The principal questions presented are these: First, ought the trial court to have sustained the demurrer to plaintiff's evidence on account of contributory negligence of plaintiff's intestate; second, was there liability on the part of the defendants or either of them because of negligence?

I. The able counsel for each of the plaintiffs in error have given the first question much attention in their briefs. They say that the deceased had lived in Fort Scott for ten years, and had driven under the Third Street trestle very frequently, with wagon or cab, both by day and by night; that there were two other routes on which it was safe to drive; that the night was bright and there was nothing to obstruct his view for some time before he reached the trestle; that the other employees of the omnibus company knew the trestle was low and were in the habit of "ducking" their heads in going under it even when driving hacks,--counsel, however, admit that there was no necessity for so doing; and that the presumption is irresistible that the deceased was acquainted with the height of the trestle. From these facts they conclude that deceased must have driven against the trestle without care or precaution; and that they have made out a case where contributory negligence is so clearly shown that the trial court should have sustained the demurrer to the evidence of plaintiff. In support of this claim a large number of cases are cited from which they quote copiously.

The case of Finlayson v. Railroad Co. (1 Dillon 579) is not applicable, as it appears that the injured party was strolling along a railroad track "in a state of abstraction careless of what might happen," practically inviting harm. In this case deceased was going where he had a right to go in the performance of his work. Counsel have said that it was not...