The St. Louis & San Francisco Railroad Company v. McMinn

• Decision Date: 09 December 1905
• Docket Number: 14,365
• Court: Kansas Supreme Court
• Parties: THE ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. ROBERT MCMINN

84 P. 134

72 Kan. 681

THE ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. ROBERT MCMINN

No. 14,365

Supreme Court of Kansas

December 9, 1905

Decided. July, 1905.

Error from Johnson district court; WINFIELD H. SHELDON, judge.

Judgment affirmed.

Pratt Dana & Black, and L. F. Parker, for plaintiff in error.

A Smith Devenney, and John T. Little, for defendant in error.

OPINION

Per Curiam

This is an action for damages on account of a personal injury received by the defendant in error while in the employment of the plaintiff in error as a section-hand, on April 15, 1902 in Kansas City, Mo. Action was brought against the plaintiff in error in Johnson county, Kansas, where a recovery was had, and the plaintiff in error is here asking that the judgment be reversed. There are many questions presented, but the conclusion reached by this court makes it unnecessary to consider more than one.

The injury complained of occurred at a street-crossing where there were four tracks over which trains were run; all trains going into the union depot were run on the east track, and all coming out ran on the west track.

The defendant in error, and the crew with which he was working, were engaged in removing old ties from under the west track and replacing them with new ties. Trains passed so frequently that it became a custom for the foreman of the crew to watch for trains and warn the workmen thereof in time for them to escape injury. Upon the trial the jury returned special findings of fact, answered at the request of the plaintiff, which read:

"(9) Ques. Did or did not the foreman warn and signal plaintiff to leave his work on the west track on that day? Ans. Yes.

"(10) Q. If you answer the last question 'yes,' then state if plaintiff understood the signal for him to go to the east between the tracks. A. Yes."

"(12) Q. Did or did not plaintiff immediately obey said signal and warning? A. Yes.

"(13) Q. While plaintiff was going from the west track to the east track did he or did he not look in both directions and listen for approaching trains? A. Yes.

"(14) Q. If you answer the last question 'yes,' then state if he saw or heard any train approaching him on the east track. A. No.

"(15) Q. Did or did not the plaintiff inadvertently and unintentionally, when under more or less excitement and fear, stop too near the west rail of the east track? A. Yes.

"(16) Q. If you answer the last question 'he did,' then state if while standing there he did or did not look and listen for approaching trains. A. He did not."

"(27) Q. If you answer question 22 'yes,' then state at what rate of speed were said engine and train of passenger-cars running over said public crossing, per hour, when the same collided with and injured plaintiff. A. Twenty-five miles per hour.

"(28) Q. At what rate of speed per hour was that freight-train then running on the west track over and upon said crossing? A. Ten miles per hour.

"(29) Q. Were said trains then and there going in opposite directions? A. Yes."

The jury returned special findings of fact, answered at the request of the defendant, which read:

"(1) Ques. Did a train strike Robert McMinn on April 15, 1902? Ans. Yes."

"(3) Q. By what company was said train operated and in whose employ were the persons in charge of the engine and the train No. 134? A. Kansas City, Clinton & Springfield Railway Company.

"(4) Q. How many tracks were at the place where plaintiff was injured? A. Four.

"(5) Q. What was the distance from the center of one main track to the center of the other main track? A. About fourteen feet.

"(6) Q. What was the distance between the inside rails of the two main tracks? A. About eight feet and six inches."

"(9) Q. What was the distance in the clear for a person to stand in with a freight-car on one track and a passenger-coach on the other? A. About four feet and six inches.

"(10) Q. How long had plaintiff been working for defendant as a section-man? A. About six weeks.

"(11) Q. Did he know that defendant's track, where he was working and had been working, was a double track? A. Yes.

"(12) Q. How frequently did trains pass going either way on defendant's double track at the point of the accident? A. About twenty-five trains per day.

"(13) Q. Was this fact known to plaintiff? A. Yes.

"(14) Q. On which track was plaintiff working at the time he was hurt? A. West track.

"(15) Q. Which train passed upon this track? A. Freight- or drag-train.

"(16) Q. Did the transfer or freight-train pass plaintiff or arrive at the point of the accident before the passenger-train? A. It arrived and partly passed.

"(17) Q. Did not defendant's foreman warn plaintiff of the approach of the transfer or freight-train? A. Yes.

"(18) Q. What position did plaintiff take after being notified of the approach of the transfer or freight train? A. Between the tracks.

"(19) Q. What position did all the other section-men, with the exception of the foreman, take with reference to the double tracks? A. Outside of the main tracks.

"(20) Q. How near did plaintiff stand to the outgoing track as the outgoing freight-train or transfer passed? A. About six and one-half to seven feet.

"(21) Q. How near did he stand to the east or incoming track? A. About eighteen inches.

"(22) Q. Was there sufficient room for a person to stand between the two tracks when there was a passenger-train on the incoming track and a freight or transfer passing on the outgoing track? A. Yes.

"(23) Q. Did not section foreman Thomas Carter stand between the two tracks, when the trains were passing, without being hurt? A. Yes.

"(24) Q. How far could plaintiff have seen the incoming train if he had looked in time? A. About 150 feet.

"(25) Q. Did plaintiff have time to take a position outside of both tracks when first notified by the section foreman? A. Yes.

"(26) Q. If plaintiff had looked in time could he not have seen the incoming train in time to have passed over the east or incoming track in time to have avoided being hurt? A. Yes."

"(32) Q. How far could plaintiff have seen the engine of the passenger-train on the incoming track, if he had looked in time, before he was struck? A. One hundred and fifty feet.

"(33) Q. Did plaintiff see the engine of the passenger-train on the incoming track before he was struck? A. No.

"(34) Q. What movement, if any, did plaintiff make toward the incoming track at the time he was injured and just before he was struck? A. He turned.

"(35) Q. What direction was plaintiff facing when he first took a position between the two tracks? A. West.

"(36) Q. What direction was plaintiff facing at the time he was struck? A. North.

"(37) Q. What effort did plaintiff make, if any, in order to avoid being struck? A. None; hadn't time.

"(38) Q. Was plaintiff engaged in any work at the time he was struck? A. No.

"(39) Q. How far west or toward the outgoing track would plaintiff have had to move in order to clear the engine on the incoming track? A. About three feet.

"(40) Q. Was plaintiff's hearing and eyesight good? A. Yes.

"(41) Q. What, if anything, was there to prevent plaintiff from crossing over the east track to a place of absolute safety before he was struck? A. Nothing.

"(42) Q. In how many seconds could plaintiff, in the exercise of ordinary care, after he left the west track, have moved across the east track to a place of safety? A. About ten seconds."

"(44) Q. Was this about the usual time for train No. 134 of the Kansas City, Clinton & Springfield railway to pass the point of the accident? A. Yes.

"(45) Q. Was plaintiff familiar with the time when train 134 of the Kansas City, Clinton & Springfield railway should pass? A. No.

"(46) Q. How much of the transfer train or drag had passed plaintiff when plaintiff was struck? A. Half.

"(47) Q. How many cars were there in defendant's transfer train or drag, and what was the...