The Kansas City v. Cravens

• Decision Date: 10 January 1890
• Court: Kansas Supreme Court
• Parties: THE KANSAS CITY, FORT SCOTT & GULF RAILROAD COMPANY v. JESSE W. CRAVENS et al

23 P. 1044

43 Kan. 650

THE KANSAS CITY, FORT SCOTT & GULF RAILROAD COMPANY v. JESSE W. CRAVENS et al

Supreme Court of Kansas

January 10, 1890

Error from Miami District Court.

THE case is stated in the opinion.

Judgment affirmed.

Wallace Pratt, and Chas. W. Blair, for plaintiff in error.

W. H Browne, for defendants in error.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.:

This case was tried in the Miami county district court, on the 1st day of July, 1887, and the plaintiff below obtained a judgment for $ 125. The action was brought to recover the value of a certain bay mare, alleged to have been killed by the negligence of the railroad company. The company brings the case here for review. At the conclusion of the plaintiff's evidence the railroad company interposed a demurrer thereto, on the ground that the same failed to establish a cause of action. Two propositions are contended for by the counsel for plaintiff in error, and the first is substantially, that no negligence was shown by not sounding the whistle; and, secondly, it was not shown that the presence of the mare on the track was seen in time to stop the train and avoid the damage. These are questions of fact, but presented in such shape that we are compelled to see whether there is some evidence tending to show negligence on the part of the railroad company. The mare was killed on the crossing of a public highway over the track of the railroad. It is fairly established by the evidence that the train was behind time, and running faster than usual; it was going at the rate of eighteen or twenty miles per hour. The rate of speed of the train was such that when it struck the mare it knocked and dragged her one hundred and fifty feet. It was growing dark when the mare was struck, it being about 8:15 o'clock in the evening of May 22, 1886. There was the usual whistling-post at the statutory distance from the crossing at which the mare was struck. Most of the witnesses for the plaintiff below at the trial swore that the train whistled at the post; two swore that it whistled but once. Conceding that the evidence of the others could be construed to mean three times, might it not be fairly said, from the evidence of the two, that there was but one whistle at the station? We must view this in the same light as the jury would. There is some evidence of negligence, then, at the whistling-post. A demurrer to the evidence admits every fact most favorable to the other side which the evidence tends to prove. (Christie v. Barnes, 33 Kan. 317.) In considering a demurrer to evidence, the court cannot weigh evidence. (Merket v. Smith, 33 Kan. 66; Wolf v. Washer, 32 id. 533.) Applying the rules announced in these two cases to the contention of counsel for plaintiff in error, and admitting that the five witnesses, Walker, Turner, Bowman, Elden Walker, and Morris, testified that the train whistled three times at the whistling-post, while the record shows that Brown and Cravens say that they heard it whistle only once, and the negligence relied on is not whistling at the post, as in the case of the Mo. Pac. Rly. Co. v. Stevens, 35...