Young v. Chicago

• Citation: 45 P. 583,57 Kan. 144
• Decision Date: 11 July 1896
• Docket Number: 8122,8123
• Court: Kansas Supreme Court
• Parties: M. B. YOUNG v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY. C. R. YOUNG v. SAME

45 P. 583

57 Kan. 144

M. B. YOUNG v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY.

C. R. YOUNG v. SAME

Nos. 8122, 8123

Supreme Court of Kansas

July 11, 1896

Decided July, 1896.

Error from McPherson District Court Hon. Frank Doster, Judge.

AFFIRMED.

Judgment affirmed.

Lucien Earle, and John D. Milliken, for plaintiffs in error.

M. A Low, and W. F. Evans, for defendant in error.

OPINION

MARTIN, C. J.:

About 6 o'clock on the evening of November 6, 1890, as it was getting dark, the plaintiff, M. B. Young, a married lady of the age of 23 years, was injured at a crossing of the defendant's railway coming into McPherson. Her home was about eight miles northeast of town, and she left there near 5 o'clock, driving alone in a one-horse buggy, the top being down. The tracks of the Atchison, Topeka & Santa Fe railroad and the defendant's railroad are about 75 to 100 feet apart at this point. She testified that she crossed the Santa Fe track and knew that the Rock Island train was about due, and when between the two tracks she looked and listened three or four times for the Rock Island train, and the last time, when about 10 or 15 feet from the track, she stopped and looked and listened for the train, but she did not see or hear it, although she saw the whistling-post on the side of the track 80 rods away. She stated that she was driving in a slow walk, not as much as three or four miles an hour, but the horse and buggy were struck by the train, although she had not seen it at all. There was evidence that no whistle was sounded or bell rung for the crossing, and that the train was running 30 to 45 miles per hour, with the headlight burning. The court sustained a demurrer to the plaintiff's evidence, upon the ground, we suppose, of the contributory negligence of the plaintiff, there having been abundant evidence to establish prima facie the negligence of the defendant. It is earnestly contended that the case should have been submitted to the jury as to whether or not the plaintiff was guilty of contributory negligence.

The case must be decided upon the plaintiff's own evidence no other having been given as to what she actually did. There was a board fence five feet high between the Santa Fe and the Rock Island tracks, but this could have been no obstruction to the vision when she was within 10 or 15 feet of the Rock Island track, if, indeed, it could be* any practical obstruction, from any point of view, to obscure the sight of a train. She testified that she looked along the track for a quarter of a mile to the whistling-post, but saw no train approaching. If she looked in the direction of the train, as she testifies, and saw the whistling-post, it would seem that she must have seen the train, and she had ample time to get across the track or to turn back before it arrived at the crossing, even if her horse was going only two miles while the train was running 45 miles per hour. No doubt the trial court was forced to the conclusion, either that she did not look and listen as the law requires, or that, having looked and listened, she saw the train, or ought to have seen it, in time to have avoided the injury. If by reason of the twilight the train itself was not visible as far as it would be at midday, still the headlight might have been seen for a long distance; but she testifies that she looked along the track and saw nothing at all. This is not a case of conflicting testimony, and we must accept the same view entertained by the court below, namely, that upon the plaintiff's own evidence she must have been guilty of contributory negligence. If several minds might reasonably arrive at different conclusions respecting the question...