The Missouri Pacific Railway Company v. Prewitt

• Decision Date: 05 November 1898
• Docket Number: 11082
• Citation: 54 P. 1067,59 Kan. 734
• Parties: THE MISSOURI PACIFIC RAILWAY COMPANY v. I. A. PREWITT et al
• Court: Kansas Supreme Court

54 P. 1067

59 Kan. 734

THE MISSOURI PACIFIC RAILWAY COMPANY v. I. A. PREWITT et al

No. 11082

Supreme Court of Kansas

November 5, 1898

Decided July, 1898.

Error from the Court of Appeals, Southern Department.

Judgment reversed.

J. H Richards and C. E. Benton, for plaintiff in error. Hamilton & Leydig, of counsel.

Shinn & Knowles, for defendants in error.

OPINION

DOSTER, C. J.

This was an action to recover damages for the death of an infant two years and four months old, caused, as alleged, by negligently running upon and over it with a train of cars. A verdict and judgment for $ 550 was rendered for plaintiffs in the trial court. Upon proceedings in error to the Court of Appeals the judgment was affirmed. Mo. Pac. Rly. Co. v Prewitt, (7 Kan. App.) 51 P. 923. The case has been ordered here for review. The only question necessary for consideration arises upon the special findings of the jury as to the circumstances of the accident. Such of the findings as are most material to this question are as follows:

"1. Did the engineer when he discovered an object upon the track make any effort to slacken the speed of his train so that it could be stopped if necessary before passing over the object? A. Not when he first discovered the object.

"2. Could the engineer have stopped the train before striking the child had he taken such measures as were in his power at the time he first discovered the object on the track and before he knew and recognized it to be a child? A. Yes.

"3. Were the engineer and fireman in doubt as to the nature of the object when they first discovered it upon the track and until they recognized it as a child? A. Yes.

"4. How far was the said Bertie Prewitt from any public highway or crossing at the time of the accident? A. About 147 rods.

"5. How far was the house in which the plaintiffs and said Bertie Prewitt lived from the place where the said child was injured? A. About 47 rods.

"10. Is it not true that when the engineer in charge of the engine first discovered the object which afterwards proved to be the said Bertie Prewitt, he believed that said object was a piece of paper or weed which had blown upon the track? A. No.

"11. Is it not true that when the engineer first discovered the object which afterwards proved to be Bertie Prewitt upon the track that he believed it to be something that could not be injured and which would not endanger his train or the passengers upon it? A. Yes.

"12. Prior to the time that the engineer or fireman discovered that the said object was a child, did they, or either of them, believe or have any reason to believe that a child might be upon the railway track at that point? A. No.

"13. Is it not true that from the time the said object was first discovered upon the track by the engineer and fireman up to the time when they discovered that it was a child, both said engineer and fireman believed that it was a piece of paper or weed, or something of that character which could neither be injured nor do damage to the train? A. No.

"15. Was the place where said Bertie Prewitt was injured a place that was frequented by children or where children were in the habit of playing or being? A. No.

"16. From the time the object which afterwards proved to be Bertie Prewitt was first discovered by the engineer or fireman, did the said Bertie Prewitt move or give any signs of life which could be noticed by either the fireman or engineer? A. No.

"19. Did either the engineer or fireman prior to the time they, or either of them, discovered that said object was a child, have any idea that it was any living thing? A. Yes.

"52. Does not the evidence show that the child was, at and before the time it was killed, lying motionless on the southern slope of the surfaced earth between the rails? A. Yes.

"53. Does not the evidence show that when the engineer and fireman first discerned the child they did not know what it was but thought it was a paper or weed? A. Yes.

"54. Does not the evidence show that neither the engineer nor the fireman knew that it was a living creature until after the engineer asked the fireman what it was and just prior to the time that he reversed his engine and applied the brakes. A. Yes.

"55. Does not the evidence show that if the engineer had doubt at all as to what the character of the object was up to the time that he discovered that it was a child and the time when he applied the brakes and reversed his engine, he had no thought that it was a child or human being? A. Yes.

"56. Does not the evidence show that as soon as the engineer discovered it was a child he did everything in his power to stop the engine and train and save its life? A. Yes.

"58. Is it not true as established by the evidence that the train was equipped with the best modern appliances and with what is known as the Westinghouse Improved Air Brakes, for the stopping of the engine and train in cases of emergency, and that they were in good working order at the time of the accident? A. Yes.

"59. Is it not true that the engineer in charge, Peter Lahey, was above the average engineer in sobriety, good habits and skill? A. Yes.

"60. Does not the evidence show that at the time of the accident the engineer was in good health and in full possession of all his faculties? A. Yes.

"61. Does not the evidence show that the fireman, Leroy Liggitt, was a skilful fireman and a man of good habits and faithful in the discharge of his duty? A. Yes, according to testimony."

Other findings, not important to set out in full, disclose the fact that a ditch and a hedge fence with an opening in it, intervened between the house of the child's parents and the place of the accident. From all these findings it would appear that the child had wandered from the care of its parents to the railroad track, and had lain down 147 rods from any public highway crossing, and was probably asleep at the time of its death. Such cases greatly move the sympathies, and incline us all to try to find for the stricken parents some balm to assuage their grief. The law, however, will not impose penalties upon an innocent cause of human sorrow, however poignant the suffering may be.

Do the findings show fault upon the part of the Railroad Company through the negligence of its employees? The findings numbered ten and fifty-three would appear to be contradictory as to what the engineer thought the object on the track was when he first discovered it. So far as the fact inquired about, and concerning which answers were made, is involved in the substance of the case, a claim of reversal might be founded upon these contradictory findings. We will not however base our judgment upon any theory of inconsistency in the findings, but upon the substantial facts of the case disclosed by them as a whole. These substantial facts were that the child was not run upon at a public highway crossing nor at a place frequented by children, and that there was nothing in its appearance to indicate to the enginemen that it was a human creature or any living thing which could be injured or do injury to the train or passengers, until it was too late to avoid running over it. In view of such fact can the Railroad Company be rightfully accused of negligence? We feel sure that it cannot. Regard must be had at the outset, in the consideration of such cases, to the duties resting upon railroad companies as public carriers of passengers and property, and to the manner in which those duties must of necessity be discharged. Trains must be run upon time schedules. They cannot conform to the schedule if obliged to stop at the appearance upon the track of all objects the nature of which is only discernible upon near approach. Rags, papers, weeds, fowls and small animals are perceived and run over between all...