Zirkle v. Missouri Pacific Railway Company

• Decision Date: 09 May 1903
• Docket Number: 13,111
• Parties: IDA M. ZIRKLE v. MISSOURI PACIFIC RAILWAY COMPANY
• Court: Kansas Supreme Court

72 P. 539

67 Kan. 77

IDA M. ZIRKLE v. MISSOURI PACIFIC RAILWAY COMPANY

No. 13,111

Supreme Court of Kansas

May 9, 1903

Decided January, 1903.

Error from Leavenworth district court; J. H. GILLPATRICK, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

RAILROADS--Injury at Crossing. A person who stands on a railway-track engaged in conversation, with his back turned toward a string of stationary freight-cars about fifty feet distant on the same track, which he has seen, is guilty of such contributory negligence that no recovery can be had for his death caused by the sudden movement of the cars toward and against him without warning. The fact that deceased was waiting for another train to pass, which barred his way, cannot excuse his negligent act.

John H Atwood, and J. C. Petherbridge, for plaintiff in error.

Waggener, Doster & Orr, for defendant in error.

SMITH J. All the Justices concurring.

OPINION

SMITH, J.:

Paul B. Zirkle was killed by the cars of the Missouri Pacific Railway Company. In an action by his wife against the company to recover her pecuniary loss, the court below sustained a demurrer to the evidence introduced in support of plaintiff's case. She has come here complaining that such ruling was erroneous.

The circumstances of the accident may be briefly stated. Cherokee street in the city of Leavenworth runs west from the Missouri river. Near its eastern terminus three tracks of the Missouri Pacific Railway Company cross it at right angles. The deceased in the night-time was walking toward the west in company with a companion named Spangler. They crossed the first track, which ran through a railway freight-house situated south of them. Reaching the second track, which was laid along the west side of the freight-house, they stopped to permit a moving train to pass, which occupied the third track immediately in their path. The second track, on or close to which Zirkle stood when he was run down, was used chiefly for the storage of freight-cars. When Spangler and the deceased stopped they noticed a string of box cars standing south of them about forty-five feet distant. Each had a lantern and there were two electric arc-lights burning 200 feet away. Zirkle was a telegraph operator in the employ of the Union Pacific Railway Company, and had been working for two years in a building about eighty feet from the freight-house above mentioned of defendant in error. He had often crossed these tracks.

At the time of the accident Zirkle and his companion were standing between, or close to, the rails, facing north, with their backs toward the freight-cars south of them, engaged in conversation. There was ample space between the outside rails of the tracks where two persons might have waited, free from danger. While in this position, and so occupied, the freight-cars were moved north. Zirkle was struck and killed.

Spangler testified as a witness for plaintiff below. He said there was plenty of room between track No. 2 and the next one west; that the space was planked; that Zirkle's attention was called to the standing cars south of them. We give a few answers in the words of the witness upon cross-examination:

"Ques. So at all events, when you and he stepped in between the rails of this track, you deliberately turned your backs upon these cars and stood there while these cars moved at least fifty feet? Ans. Yes, sir.

"Q. Without looking in that direction? A. Yes, sir.

"Q. Without taking any precaution to see whether they were coming? A. Yes, sir.

"Q. Without any necessity for it? A. Yes, sir.

"Q. You did it voluntarily? A. Yes, sir.

He responded to plaintiff's counsel as follows:

"Q. At what time did you suppose they would move? A. Well, I hardly thought they would move before this train (the train in front of them) got out of the way."

Counsel for plaintiff below base their claim of error on the fact that there was testimony tending to prove that the moving train in front of Zirkle, which obstructed his passage...