The Missouri Pacific Railway Company v. Griffith

• Decision Date: 09 April 1904
• Docket Number: 13,584
• Citation: 69 Kan. 130,76 P. 436
• Parties: THE MISSOURI PACIFIC RAILWAY COMPANY v. C. L. GRIFFITH
• Court: Kansas Supreme Court

76 P. 436

69 Kan. 130

THE MISSOURI PACIFIC RAILWAY COMPANY v. C. L. GRIFFITH

No. 13,584

Supreme Court of Kansas

April 9, 1904

Decided January, 1904.

Error from Miami district court; W. H. SHELDON, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

RAILROADS -- Injury at Crossing -- Pleading and Proof. Where the plaintiff sets up in his petition as grounds of recovery for injuries Sustained in a collision with a railroad-train at a public crossing specific acts of negligence of the railroad company in failing to give warning Of the approach of the train and in running at a high and reckless rate of speed, the trial court is not warranted in enlarging the issues and in submitting to the jury, as an additional ground of recovery, the negligence of the defendant in permitting buildings and cars to be placed and to remain on the right of way in such positions as to obstruct the view of the plaintiff when approaching the railroad-track.

Waggener Doster & Orr, for plaintiff in error.

N. W. Wells, for defendant in error.

JOHNSTON C. J. All the Justices concurring.

OPINION

JOHNSTON, C. J.:

At a crossing near the town of Lane a train of the Missouri Pacific Railway Company collided with a team and wagon driven by C. L. Griffith, destroying the wagon, killing one mule, crippling another, and greatly injuring Griffith. He brought this action to recover the damages sustained. The only negligence alleged against the railroad company in his petition was that the locomotive, with train, which struck him "was being negligently and recklessly managed, in this, to wit: that it was being run at a high and reckless rate of speed; that no warning was given of its approach to said crossing on said public highway by ringing the bell oil said locomotive, or by sounding the whistle thereof, or by any other means."

In describing the crossing and the situation where the accident occurred, he averred that on the right of way, and immediately east of the crossing, the company permitted to be constructed and maintained two frame buildings which obstructed the view of the railroad-track east of the highway, and also that at that time the company had placed on its side-track a boarding-train which extended easterly from the highway, and that this, together with the buildings mentioned, completely obstructed the view of a traveler approaching on the highway south of the railroad-tracks. No negligence was imputed to the railway company on account of the location of the buildings or the position of the boarding-train. In the course of the trial, which resulted in a verdict in favor of Griffith, the court charged the jury as follows:

"The particular acts of negligence imputed to the defendant in this action by the plaintiff are that it permitted to be constructed and maintained two frame buildings in such a manner as to obstruct the view of its track east from the public highway, and that it placed upon its side-track south of its main track a train of cars known as a boarding-train, extending easterly from about the center of the public highway in Lane, Kan., where plaintiff desired and attempted to cross defendant's track, to near the station-house of defendant."

In another instruction the jury were advised that the railway company must not allow any unnecessary obstruction on its right of way near a public crossing which might cut off the view of an approaching train, and that if it unnecessarily and negligently permit buildings or other structures or things to stand upon its right of way at a public crossing or highway, it is responsible for injuries...