58 Kan. 293 | Kan. | 1897
This was an action brought against the Atchison, Topeka & Santa Fe Railroad Company by George W. Aderhold, as administrator, to recover damages for the death of his son, John E. Aderhold, who was killed in a collision with a freight train. The casualty occurred at a highway crossing in the country, on a clear April day in 1892. At the point where
• John E. Aderhold, who was between eighteen and nineteen years of age, had frequently traveled over the crossing and was familiar with the surroundings. On the day of the accident he was driving northward toward Valley Falls a team of horses attached to a farm wagon. Just before approaching the crossing, he was noticed by a witness to be driving on a slow walk, with his head bent foward, apparently looking in the bottom of the wagon. A view of the track could be had from the highway toward the east for some distance, except where it was obstructed by a house and barn which were near to the crossing. About noon of that day, a freight train, consisting of a locomotive and twelve box cars, approached from the west, on a down grade, and was running at the rate of from twenty-five to thirty miles an hour. When the horses had passed partly over the track, the locomotive ran into the front of the wagon, throwing the horses on one side of the track and Aderhold and the principal part of the wagon on the other, and instantly killing
The casualty is alleged to have been caused by the negligence of the Company in failing to build and maintain a safe and suitable crossing. The principal complaint is in regard to a hole in the culvert on the north side of the track, which, it is alleged, had been there so long that the Company knew, or should have known, of its existence. It was also alleged that the whistle of the locomotive was not sounded, nor the bell rung, on approaching the crossing.
The jury found in favor of the plaintiff below, but also found that the whistle was sounded eighty rods from the crossing, as the statute requires, and that when Aderhold was discovered by the engineer he applied the air-brakes and did all in his power to stop the train.
It is argued that some of the testimony given by these witnesses was so inconsistent and unreliable that the jury could not give credit to any of it. It is true that some of the testimony given by them as to the respective distances that the train and Aderhold were away from the crossing when Aderhold was first
Assuming, however, that he is not chargeable with negligence, we are nevertheless required to hold that the testimony fails to show that the accident was the result of the negligence of the Company. The culvert was defective, it is true; but who can say that the hole was a factor in causing the injury, or that the previous repair of the defect would have averted the injury? It is possible that the horses might have been frightened and hindered by the hole ; but things which are possible may never happen. The accident may be accounted for in several ways, and other and more plausible theories of the collision may be readily suggested; but liability cannot be fixed on a bare guess, nor can a verdict rest on mere conjecture.
The judgment of the District Court will be reversed and the cause remanded for a new trial.