Union Pac. Ry. Co. v. Adams

• Decision Date: 10 April 1885
• Citation: 33 Kan. 427,6 P. 529
• Parties: THE UNION PACIFIC RAILWAY COMPANY v. SAMANTHA A. ADAMS
• Court: Kansas Supreme Court

6 P. 529

33 Kan. 427

THE UNION PACIFIC RAILWAY COMPANY v. SAMANTHA A. ADAMS

Supreme Court of Kansas

April 10, 1885

Error from Douglas District Court.

ACTION to recover damages for personal injuries. November 28, 1882 the plaintiff Adams recovered a judgment for $ 2,000 against the defendant Railway Company. It brings the case here. The opinion states the material facts.

J. P Usher, for plaintiff in error.

Geo. J Barker, and J. W. Green, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

Samantha A. Adams sued the Union Pacific Railway Company in the district court of Douglas county, to recover for injuries received by her, by being thrown from a spring wagon that was struck by a locomotive of a passenger train operated by defendant on its railroad. It appears that on the 9th day of October, 1880, the plaintiff, in company with Martin Adams, his wife and two daughters, started from the city of Lawrence to go to the home of Martin Adams, in Jefferson county. The team and spring wagon in which they were riding, was driven and owned by Mr. Adams, who, with his wife, sat in the front seat of the wagon, and the plaintiff and the two daughters of Mr. Adams occupied the hind seat. They traveled in a northerly direction near to and east of the defendant's railroad for a distance of two miles, where they intersected an east-and-west road running at right angles with the railroad, which at this point runs nearly north and south. The railroad crossing is about five hundred feet west of this point. Upon the north side of the east-and-west road, where the turn was made, to within eighteen feet of the railroad crossing, there is a high untrimmed hedge fence, which at that time was in full leaf, and to some extent was interlaced with weeds and grass. The plaintiff and her party turned and passed west over this road, driving along at a jog trot, and just as the horses reached the railroad track it was discovered that the passenger train of the defendant was coming down upon them from the north at a rapid rate, when Mr. Adams, the driver, whipped up the horses and endeavored to cross in advance of the train, but the hind end of the wagon was struck by the locomotive, tipping it over, throwing the plaintiff upon the ground, dislocating her shoulder, and fracturing her arm. The plaintiff alleged in her petition that she was injured on account of the negligence of the employes of the defendant on the train, in failing to sound the whistle eighty rods north of the crossing, as required by the statute; and she also stated that the railroad company had failed to place a notice at this point indicating the location of the railroad crossing.

On the part of the defendant, it was alleged that the plaintiff's injuries resulted solely from her own negligence and that of Martin Adams, with whom she was riding at the time of the collision. Upon the trial, and after the plaintiff had offered her testimony and rested, a demurrer to her evidence was interposed and filed by the defendant, on the ground that no cause of action had been proven by her. The testimony offered by the plaintiff tended to show, and upon this demurrer it must be held to have established, that the whistle of the engine was not sounded eighty rods away from the crossing as required, nor that any signal was given by those in charge of the train until the wagon was discovered by them upon the track, which was almost simultaneous with the collision. The negligence of the defendant, then, must be regarded as proved. The contention of the defendant, however, is that the plaintiff's testimony discloses that her own want of ordinary caution and care directly contributed to the injury. The negligence of the defendant in such a case is not always sufficient to warrant a recovery, and while contributory negligence on the part of the plaintiff is a matter of defense, still if the plaintiff's evidence shows that her injury was the proximate result of her own negligence, she has failed to make out a prima facie case, and notwithstanding the negligence of the defendant, the demurrer to the evidence should be sustained. (Gibson v. City of Wyandotte, 20 Kan. 156.)

It is now well settled in this state and elsewhere, in cases where the plaintiff seeks to recover for injuries on the ground of defendant's negligence, that if the ordinary negligence of the plaintiff directly or proximately contributed to his injury, he cannot recover unless the injury was intentionally and wantonly caused by the defendant. (Gibson v. City of Wyandotte, supra; Jackson v. K. C. L. & S. K. Rld. Co., 31 Kan. 761; Mason v. Mo. Pac. Rly. Co., 27 id. 83; Corlett v. City of Leavenworth, 27 id. 673; Mo. Pac. Rly. Co. v. Haley, 25 id. 35; C. B. U. P. Rld. Co. v. Henigh, 23 id. 347; Williams v. A. T. & S. F. Rld. Co., 22 id. 117; Artman v. K. C. Rly. Co., 22 id. 296; K. P. Rly. Co. v. Pointer, 14 id. 37; L. L. & G. Rld. Co. v. Rice, 10 id. 426.)

It is equally well settled that it is the duty of a traveler upon a highway about to cross a railroad track, to make a vigilant use of his senses in order to ascertain whether there is a present danger in crossing. This is required not alone for his own safety, but also for the protection of the lives of the passengers upon the railway trains. The traveler who fails to take this precaution is not using ordinary care. How is it in this case? An examination of the plaintiff's evidence we think shows that the plaintiff and her driver were negligent. It appears that the parties drove up in a two-horse wagon, upon a trot, in plain view of the railroad track, without stopping to listen or look for the approach of a train, or taking any precaution whatsoever to learn whether there was danger in then attempting to cross. Both the plaintiff and Mr. Adams, who was driving the team, were familiar with the highway, well acquainted with the crossing, and with the fact that trains were frequently run over the road.

Martin Adams testified as follows:

"Ques.: Every one of you knew where the railroad was? Ans.: Yes, sir.

"Q. It was right in plain sight of you when you were coming through that sandy road and cut? A. I saw where it was ahead of me.

"Q. You could see the railroad? A. Of course; it was elevated.

"Q. Were you thinking of the train at all? A. I don't recollect that I was.

"Q. You never thought of the possibility of a train until your horses' heads were on the track? A. Don't think I did.

"Q. Weren't you thinking about going on the track? A. I don't recollect of thinking anything particular about the train coming.

"Q. None of you were thinking about the train? A. Not that I know of.

"Q. I will ask you now the question: did you look or listen for the train at all? A. Not that I know of."

The plaintiff, Samantha Adams, testified:

"Ques.: You knew the railroad was there? Ans.: Yes, sir, we knew the railroad was there.

"Q. You were not thinking about the train at all? A. No, sir, I was not.

"Q. You did not hear the ears coming? A. No, sir.

"Q. You did not hear anything of the train? A. No, sir, not anything.

"Q. Never thought of it? A. No, not particularly.

"Q. Did you look for the train in any way? A. Well, we could not have seen it if we had looked right there. But we did not look, though. I did not look.

"Q. Did you...