The Union Pacific Railroad Company v. Entsminger

• Citation: 76 Kan. 746,92 P. 1095
• Decision Date: 07 December 1907
• Docket Number: 14,905
• Parties: THE UNION PACIFIC RAILROAD COMPANY v. A. L. ENTSMINGER
• Court: United States State Supreme Court of Kansas

92 P. 1095

76 Kan. 746

THE UNION PACIFIC RAILROAD COMPANY v. A. L. ENTSMINGER

No. 14,905

Supreme Court of Kansas

December 7, 1907

Decided July, 1907.

Error from Shawnee district court; ALSTON W. DANA, judge.

STATEMENT.

THIS was an action to recover damages for the killing of four head of cattle at a highway crossing by the defendant company. The jury returned special findings, from which it appears that no whistle was blown within eighty rods of the crossing; that when the plaintiff heard the train it was within sixty-five rods of the crossing and running at the rate of thirty miles per hour; that if the whistle had been sounded for the crossing, and the train had been running at "a reasonably safe speed for that place," the plaintiff could have saved his cattle; also, that if the plaintiff had looked west at any time while within 400 feet of the crossing he could have seen the train, if it had been within half a mile.

The plaintiff alleged negligence in failing to sound the whistle or to give other timely warning, and in approaching the crossing at a dangerous rate of speed. The court, however instructed the jury that there was no evidence of any negligence so far as the speed of the train was concerned. The plaintiff recovered judgment, and the company brings the case here.

The facts are substantially as follow: A. L. Entsminger, the plaintiff, is a stock-raiser, living near Silver Lake Shawnee county, Kansas. During the winter of 1903 he was accustomed in the morning to drive his cattle, numbering about fifty head, to a stalk-field about half a mile distant and to drive them back in the evening. The road necessary to be taken crosses the railroad track twice, and parallels it at a distance of about fifty feet from it, for half a mile between the two crossings. On the evening of February 13, 1903, plaintiff was returning as usual with his herd. He was following in a buggy, and with him were a young man, sixteen years old, and his grandson, four years old. They had passed the first crossing and were on the road parallel to the railroad track. When about 1000 feet from the second crossing, where the accident occurred, Entsminger looked back, but saw no train. He again looked back when about 600 feet from the crossing; and, when about 400 feet from the crossing, according to his custom, he bunched the herd of cattle preparatory to crossing the track. He then looked for trains, and, seeing none, started to drive his herd toward the crossing. When he was about 100 feet from the crossing, and the foremost cattle were just passing upon the crossing, he heard a rumbling noise and saw a train approaching. He then tried to prevent the herd from crossing, but the train struck four of them. There was no evidence tending to show that Entsminger looked for a train at any time after he was within 400 feet from the crossing until he heard the rumbling sound. In fact, upon cross-examination he testified as follows:

"Ques. Then you turned around and followed the cattle down, and the next thing you did, without looking again, was you heard the train; is that right? Ans. Yes, sir.

"Q. From this point, when you were 400 feet from the track, you didn't look until you heard the train, and then you saw it coming? A. Yes, sir."

The jury found among other facts the following:

"Ques. Could not the plaintiff, if he had looked west at any time when he was within 400 feet of the crossing, have seen the train if it had been within one-half mile? Ans. Yes."

"Q. Would not the plaintiff, if he had looked west at any time when within 400 feet of the crossing, have had a clear view of the track for one-half mile or more? A. Yes."

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS--Injury at a Crossing--Contributory Negligence. The failure of a person about to drive cattle upon a railroad-crossing to make vigilant use of his senses, so far as there is opportunity, when by taking such precautions an injury might be avoided, will bar a recovery, notwithstanding the negligence of the railway company in failing to give signals.

2. RAILROADS--Failure to Look and Listen Not Excused. The fact that the train that inflicted an injury was late will not excuse a person familiar with the place and sensible of the danger from observing the usual precautions.

N. H. Loomis, R. W. Blair, and H. A. Scandrett, for plaintiff in error.

George E. Overmyer for defendant in error.

OPINION

BENSON, J.:

The negligence of the defendant company in failing to...