104 Kan. 23 | Kan. | 1919
The opinion of the court was delivered by
This is an appeal from judgment in plaintiff’s favor for damages on account of the death of her husband, H. B. Allen.
Several years ago the four railroad companies jointly acquired the right of way and constructed a system of railroad yards, sidetracks, and switches in the northern part of Wichita, which were operated jointly by them under the name of the Wichita Terminal Association. The accident occurred on defendants’ right of way, just west of the building leased by the Wichita Alfalfa Stock Food Company, of which Mr. Allen was secretary. West of this building there were five parallel tracks running north and south, and mutually connected; the first was a sidetrack or service track 6 feet west of the stock food company’s building; the next was the terminal lead, which
Thirteenth, Fourteenth, Fifteenth and Sixteenth streets are public streets running east and west; all of them except Fourteenth street extend across the five tracks at right angles., Fourteenth street extends east only to the west line of the right of way of the Atchison, Topeka & Santa Fe Railway Company and does not cross any of the five tracks. The south line of the building of the stock food company is 88 feet north of what would be the northern boundary of Fourteenth street, had that street been extended across the railroad tracks. The north line of the building is about 450 feet south of Fifteenth street.
On the morning of the accident, there stood on the sidetrack west of the stock food company’s building a box car which had been loaded the day before with products of that company and sealed and billed out. Sixteen feet south of the loaded car was an empty freight car, and directly east of the 16-foot opening between them was an open door into the building of the stock food company. Immediately north of the loaded, car stood a string of six cars, the south end of which was about 3 feet from the north end of the loaded car. The string of standing cars extended north to within 200 feet of fifteenth street. The switching crew of the terminal association had been operating in- these yards since early in the morning and were switching cars upon the sidetrack. They had just moved a string of cars from north of Fifteenth street south and coupled them on to the cars standing on the tract, which they moved two or three feet and which came in contact with the loaded car standing by the stock food company’s building. Immediately thereafter, Mr. Allen was found unconscious between the sidetrack and the terminal lead, his open umbrella lying near him. Apparently he had been caught while attempting to pass through the three-
The special findings are that Allen was familiar with the customary use of the tracks, and that the tracks had been used daily by railroad employees for the movement of cars and engines; that one of the railroad employees was riding on the south end of the string of cars; that the railroad employees
“Knowing the location of the mill and the custom of the officers and its employees using the west door as means of entrance and exit to and from the mill they should have used more precaution. Those cars' were shunted south on industrial track and the negligence was in not having a brakeman stationed at the brake when the cars were shunted instead of on side ladder or on the ground part-of the time. The brakeman on the string of cars could not have stopped the cars in the position he was in had he seen Mr. Allen.”
The negligence alleged in the petition was in leaving a space of three and a half feet between the car filled with the products of the milling company and the car next to the north, -knowing that the officers and employees of the stock food company and others wishing to go in or out of the building might enter or pass through the space; in not causing the brakes on the standing cars to be set and fastened so as to prevent the last car from moving; in causing the cars attached to the engine to move against the stationary ears with such force and violence as to push them against the standing cars, even if the brakes had been fastened; in not having a brakeman or other employee near the open space between the cars to warn persons intending to pass over and across the service track through the open space; and in not giving any signal or warning that the coupling was to be made.
It is the contention of the defendants that at the time Mr. Allen met his death he was a trespasser on the right of way, and that the defendants owed him no duty except not to wantonly injure him. The stock food company did not own the fee
“It is further mutually agreed that -said sidetrack is to be used by the said party o-f the second part for the purpose of loading and shipping freight to and from said warehouse, with this reservation, to wit: That the said association Shall have the right to use said track for its own business, or for the business of any other person or shipper, provided that such business can in the judgment of the superintendent or other authorized agent of said association, be done on said sidetrack without serious detriment or inconvenience to the business of said party, of the second part.”
Mullen afterwards leased the warehouse to the stock food company, and assigned to it all his rights and privileges under the contract; the assignment was consented to in writing by the predecessors in interest of the defendants.
The court instructed the jury that, under the terms of the
There is no dispute in the fact that the 265 feet of the track referred to in the contract was in existence before the contract was executed, and that since then the track had grown to be 1,500 feet long, serving a number of other industries, and was devoted to state and interstate commerce;> that the service or sidetrack was a track uáed and operated in the business of the association, which had a right to use it for any purpose desired in its business. Under the contract, the right of way, “free and unencumbered,” was granted to the association; the track was to belong to the association, and it had the right to use it “for its own business, or for the business of any other person or shipper.” We fail to find in the contract anywhere a suggestion or intimation of any limitation on the use of the track by the associated railroads during the time it remained there.
Under the interstate commerce act, section 1, the jurisdiction of the interstate commerce commission over railroads includes “switches and spurs, tracks and terminal facilities . . . train yards, . . . railway trackage, whether' owned outright or operated under agreement.” (Beale and
In Dotson v. Railway Co., 81 Kan. 816, 106 Pac. 1045, the railroad company built a spur track on land owned by it, and thereafter sold the land without reserving the right of way, but continued to use and operate the track for a great many years, for its own convenience as well as the benefit of the public, with the knowledge and acquiescence of the owner. It was held that the owner could not maintain an action of ejectment to evict the company from the premises. It was said in the opinion:
“The testimony all shows that while only a few persons have done business on the spur all who desire to use it are served on equal terms. It has been used as an integral part of the system for the accommodation of the company and the public; it is subject to regulation by the state, and the company, upon refusal, could be required to serve all persons desiring service upon the road without discrimination.” (p. 822.)
In the syllabus it was said:
“Whether the use of a spur of a railroad is public is not determined by its length nor the number of industries it may serve; If it is a part of a railroad system which the public may use on equal terms as of right, and is subject to government regulation, -it is a public use, whether few or many are accommodated by its operation.” (syl. ¶ 3.)
The court was in error in the instruction which charged .that the stock food company and the associated railroads had a community of interest in the track,' and that they were in the joint occupancy of the ground on which the track was laid, and that the defendants were under any obligation to the officers and employees of the stock food company, other than' the obligation to the public generally. Moreover, there was error in that part of the instruction which charged that if
“No public way is established across- a railway switch yard merely because pedestrians for many years had so frequently trespassed thereon that they had worn a beaten path across it.” (syl. ¶ 1.)
“One who undertakes to cross a railway switch yard of many railway tracks, where engines and cars are likely to be moving at any time in the regular course of the railway’s business, is a trespasser and does so at his- peril, and the only duty of the railway company and its employees towards such trespasser is not to willfully injure him.” (syl. ¶ 2.)
In that case, a path had been worn across the tracks by the travel of persons who frequently trespassed thereon, and it appeared that when freight cars were standing on the tracks, pedestrians “would zigzag to find the openings,” through which they would cross, avoiding if possible the danger of climbing on the cars, but climbing over the couplings, if neces-' sary, or over the cars. In the present case, one of the witnesses testified that he had seen Mr. Allen go through over the couplings between the cars, and that in the majority of instances cars were standing on the track there, and it was blocked. In the opinion in the Malott case, supra, it was said:
“The fact that many trespassers, like the plaintiff, had worn a path across the switch yard and had persisted in trespassing for many years, swarming around or over or under the cars when the path was blocked by freight cars, did not have the effect of establishing a lawful footway across the defendants’ switch- yard.” (p. 117.)
It was said, too, that that case “does not differ in principle from the precedents of this court except to make the non-liability of the railway company more than ordinarily clear” (p. 117), citing dozens of Kansas cases. y
Mr. Allen had been ah officer of the stock food company for a number of years, connected with the mill since the organization of the company, and was familiar with the way the cars were operated, according to the testimony of one of the plain
The judgment is reversed, and the cause is remanded with directions to enter judgment against plaintiff.