OPINION
Per
Curiam:
This
was an action brought by Sadie E. Bussey against the
Missouri, Kansas & Texas Railway Company to recover
damages for a permanent personal injury received in a
collision between a train backing up in the railway yards of
the defendant, across Johnson avenue, in the city of Parsons
and the vehicle in which the plaintiff was riding along said
avenue.
As this
controversy depends alone upon an examination of the special
findings of fact made by the jury, and as from these findings
may be gleaned all the facts essential to the determination
of the controversy, a statement of the facts in the case,
aside from the findings made, is deemed
unnecessary. The findings requested by plaintiff were as
follows:
"Ques.
1. Do you find from the evidence that plaintiff sustained
injury at the crossing of defendant's tracks over Johnson
avenue, in the city of Parsons, on the evening of October 11,
1900? Ans. Yes.
"2.
Do you find from the evidence that the injury sustained by
plaintiff was caused by a collision of defendant's cars
with a buggy in which she was riding? A. Yes.
"3.
Do you find from the evidence that said buggy was at the time
being drawn by one horse? A. Yes.
"4.
Do you find from the evidence that the horse attached to said
buggy at the time was being driven by T. C. Griffith? A. Yes.
"5.
Do you find from the evidence plaintiff at the time had any
control over said vehicle, the horse, or the driver? A. No.
"6.
Do you find from the evidence Johnson avenue to be a street
in the city of Parsons much used and traveled by the public
where it crosses over defendant's right of way and
tracks? A. Yes.
"7.
Do you find from the evidence the tracks of defendant
crossing over Johnson avenue to be much used by defendant in
the switching and in the operation of its trains, engines,
and cars? A. Yes.
"8.
Do you find from the evidence the buggy in which plaintiff
was riding was struck by the rear car of a train being pushed
northward by defendant over Johnson avenue? A. Yes.
"9.
Do you find from the evidence that defendant was in the
exercise of ordinary care in the speed with which it was at
the time pushing its said cars over Johnson avenue? A. Yes.
"10.
Do you find from the evidence that defendant gave reasonable
sufficient signals or warnings to plaintiff, as its said cars
approached said Johnson avenue? A. Not in sufficient time to
avoid accident.
"11.
Do you find from the evidence that defendant exercised
ordinary care in the giving of signals or
warnings to plaintiff as its said cars approached Johnson
avenue? A. No.
"12.
Do you find from the evidence there was negligence on the
part of plaintiff, Sadie E. Bussey, contributing to her
injury? A. No."
The
findings made upon defendant's request were as follows:
"1.
Were the plaintiff and one Thomas C. Griffith riding together
Thursday evening, October 11, 1900? A. Yes.
"2.
During the ride of the plaintiff with said Griffith did she
hold the lines and drive the horse; and if so, for what
length of time? A. No.
"3.
About what time did the plaintiff and said Griffith start
upon their ride? A. About eight o'clock.
"4.
How many times, if at all, did the plaintiff and said
Griffith cross the railroad-tracks at the Johnson avenue
crossing prior to the time of plaintiff's injury? A. Not
at all.
"5.
Was said ride of said plaintiff and said Griffith purely a
pleasure ride? A. Yes.
"6.
Did the plaintiff or said Griffith have any
other object in taking said ride than that of pastime or
pleasure? A. No.
"7.
What was the character of the vehicle in which they were
riding? A. One-horse buggy, with top down.
"8.
Was the plaintiff at the time of said ride in possession of
all her faculties of sight and hearing, and were they in
their normal condition? A. Yes."
"10.
What is the distance from the point opposite the Alfred
hotel, on Johnson avenue, where plaintiff and said Griffiith
stopped, to the west track of the railway crossing said
avenue? A. About seventy-five feet.
"11.
What is the distance from the west rail of the west track to
the east rail of the east track across said avenue? A. About
127 feet.
"12.
What is the distance from the west rail of the
west track to the point on Johnson avenue where the collision
between the buggy in which the plaintiff was riding and the
train occurred? A. About sixty-seven feet.
"13.
How fast were the plaintiff and said Griffith traveling at
the time of and just immediately before said collision? A.
About five miles an hour.
"14.
How fast was said train going at the time of and just
immediately before said collision? A. About five miles an
hour.
"15.
Did not said train pull south across Johnson avenue just
before said collision? A. Yes.
"16.
After pulling south, did not said train come to a full stop?
A. Yes.
"17.
If you answer the last question in the affirmative, state how
far south of the south walk on Johnson avenue was the point
at which said train came to a full stop? A. About 180 feet.
"18.
Was not said train, at the time of said collision, traveling
north over Johnson avenue? A. Yes.
"19.
How many cars were there in said train at the time of said
collision? A. About eleven cars.
"20.
How far had said train traveled from the point at which it
came to a full stop south of Johnson avenue to the point of
collision with the buggy in which the plaintiff and said
Griffith were riding? A. About 220 feet.
"21.
How far did said train travel before coming to a stop after
said collision? A. About ninety feet.
"22.
Was said train stopped as quickly as it could be after the
signal to stop was given? A. Yes.
"23.
As said train proceeded north to Johnson avenue from the
point where it had come to a stop, south of Johnson avenue,
was not switchman Denny riding on the rear end of the rear
car? A. Yes.
"24.
Did not switchman Denny have in his hand, in plain view, a
lighted lantern? A. Yes.
"25.
Could not said lantern of switchman Denny have been seen by
the plaintiff, if she had looked in the direction of said
train while it was being moved toward and over Johnson
avenue? A. No.
"26.
If you answer the above question 'no,' you may then state what there was to prevent said plaintiff
and said Griffith from seeing said lantern light. A. Car.
"27.
Could not the plaintiff have seen said train at any time
after crossing the second track from the west. A. Yes."
"29.
What is the distance from the east rail of the second track
from the west over Johnson avenue to the point where the
collision occurred? A. About forty-two feet.
"30.
Did not said collision between said train and the vehicle in
which said plaintiff and said Griffith were riding occur on
the north side of Johnson avenue, at the point where the
tracks of the defendant cross the same? A. Yes; close to
center.
"31.
Did the plaintiff see the moving train at any time prior to
the collision with the vehicle in which she was riding? A.
Yes; immediately before collision.
"32.
Did the plaintiff warn said Griffith of the approach of said
train prior to the collision? A. No."
"34.
Did the plaintiff attempt to grab the lines from the hands of
said Griffith just prior to the collision? A. No.
"35.
Did the plaintiff seize the lines and attempt to take them
from said Griffith just prior to the collision? A. No.
"36.
What, if anything, did the plaintiff do to avoid the
collision? A. Nothing.
"37.
Did not night yardmaster Dean warn the plaintiff and said
Griffith of the approach of said train prior to the
collision? A. No.
"38.
Did the plaintiff pay any attention whatever to the warning
given them by said night yardmaster Dean? A. None given.
"39.
Was night yardmaster Dean on the crossing and west of the
track on which the collision occurred at the time he gave the
warning? A. No.
"40.
Did not the night yardmaster Dean have in his hand a lighted
lantern at the time he gave the warning? A. Did not give any
warning.
"41. Did not said night yardmaster Dean signal
the plaintiff and said Griffith with said lantern? A. No.
"42.
Did not said night yardmaster Dean also call to said
plaintiff and said Griffith in a loud voice. A. No.
"42
1/2. Did not switchman Denny call to the plaintiff and said
Griffith, in a loud voice, to stop? A. Yes.
"43.
Did not switchman Denny also signal said plaintiff and said
Griffith with his lantern? A. No.
"44.
Were not the warnings given by both switchman Denny and the
night yardmaster Dean in ample time, if they had been heeded
to have prevented the injury? A. No.
"45.
Did the plaintiff pay any attention to the warnings or
signals given by either said night yardmaster Dean or said
switchman Denny? A. No.
"46.
Did the plaintiff see night yardmaster Dean and his lantern
as they were approaching the crossing? A. No.
"47.
If you answer 'no' to the last above question, you
may then state what there was to prevent the plaintiff from
seeing him? A. Not there.
"48.
Did the plaintiff see switchman Denny riding on the rear end
of the rear car of the train with which the buggy collided,
as they were approaching and crossing over the tracks of the
defendant immediately before the collision? A. No.
"49.
If you answer the last question 'no,' you may then
state what there was to
prevent them from seeing him. A. Being on the east side of
train.
"50. Could not the plaintiff and said Griffith,
immediately after crossing the east rail of the second track
from the west, see track No. 1, or the high-line...
