The Missouri Pacific Railway Company v. Prewitt.

• Decision Date: 01 January 1898
• Docket Number: 264
• Citation: 7 Kan.App. 556,51 P. 923
• Parties: THE MISSOURI PACIFIC RAILWAY COMPANY v. I. A. PREWITT AND MARY I. PREWITT. [*]
• Court: Kansas Court of Appeals

51 P. 923

7 Kan.App. 556

THE MISSOURI PACIFIC RAILWAY COMPANY v. I. A. PREWITT AND MARY I. PREWITT. ^[*]

No. 264

Court of Appeals of Kansas, Southern Department, Central Division

January 1, 1898

Opinion Filed January 14, 1898.

Error from Butler district court; C. W. SHINN, judge. Affirmed.

Judgment affirmed.

J. H Richards and C. E. Benton, for plaintiff in error.

Shinn & Knowles, for defendants in error.

OPINION

SCHOONOVER, J.:

This action was brought against plaintiff in error in the district court of Butler county by defendants in error to recover damages for the death of their infant son.

It is alleged by defendants in error that on the third day of March, 1892, Bertie Prewitt, an infant of the age of two years and four months, was on the railroad track of plaintiff in error between the stations of Benton and Towanda; that the railroad was not fenced; that the appliances for stopping the train were out of repair, and that plaintiff in error, by its agents, servants, and employees, so carelessly, negligently and unskillfully managed and conducted its train that it ran against and over Bertie Prewitt and killed him.

The plaintiff in error answered by general denial and alleged contributory negligence. The case was tried to a jury, and they returned a verdict in favor of defendants in error for $ 550. The parties, both plaintiffs and defendant, submitted to the jury the special questions, which were answered and returned with the general verdict. The plaintiff in error moved for judgment on the special findings of fact, which motion was overruled.

The railway company brings the case here for review and asks for judgment in its favor.

From the findings of the jury it may be stated, that Bertie Prewitt was two years and four months old at the time of his death; that when he was struck by the passenger-train he wore a faded dress, and was lying motionless on the southern slope of the surfaced earth at a place not frequented by children, about 147 rods from any public highway or crossing, and two and one-half miles from the nearest station. It may be further stated, that at the time of the injury the train was running down grade at a rate of speed of about thirty miles an hour; that the engineer and fireman in charge were men of sobriety, good habits, and skilful; that the train was equipped with the best modern appliances for the stopping of the engine and train in cases of emergency; and that all the appliances were in good working order at the time of the accident. The serious question presented is, Did the plaintiff in error exercise due care, after the engineer discovered an object upon the track and before he knew it was a child? Upon this point the jury found, in answer to questions submitted by plaintiffs below, 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."

They also found, in answer to questions submitted by plaintiff in error, as follows:

"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, 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 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 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.

"18. Is it not true that both the fireman and the engineer were at their proper places and attending to their duties all the way from the station of Benton to the place where said Bertie Prewitt was injured? A. No.

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

"20. Did the engineer sound the whistle after he discovered the object on the track and before he knew it was a child? A. Yes.

"21. Is it true that the engineer...