57 Kan. 139 | Kan. | 1896
On August 8, 1890, Charles W. Hill died from the effects of injuries sustained at about 11 o’clock on the night of July 80, 1890, at a crossing of the railway of the plaintiff in error some two miles southwest of Nortonville, and about a mile before reaching his home, which was north of the crossing. At the May term, 1892, his widow, as administratrix, recovered a judgment against the plaintiff in error for $5,000, and this judgment is the present subject of review.
Hill left home in the morning, driving a horse which was hitched to a two-wheeled cart. ITe went first to Nortonville, with a view of going from there to Valley Falls. At Nortonville he met R. J. Eshom, who requested him to bring certain small castings belonging to a machine, and to leave them at his farm, in possession of a tenant. Pie got the castings at Valley F'alls, and was last seen there about seven o’clock in the evening. He left the castings at Eshom’s farm at some time between 10 and 11 o’clock, except a small piece, which was afterward found in his vest pocket. From Eshom’s farm he went -west to a road running north and south, which was the nearest way home, although not the best nor the most-traveled highway. The regular passenger-train from St. Joseph and Atchison to Topeka left Nortonville on time. At the place where the casualty occurred the train was running from east to west on a down grade and at a rapid rate of speed. About 800 or 900 feet east of the crossing the track curved to the north, and the train was hidden from view by the conformation of the ground. In driving north toward the crossing, however, a train might have been seen for a considerable
There was no eye-witness to the casualty except Hill himself. Upon arriving at Valley Falls, the engineer discovered that the flagstaff had been struck by something ; that it was in an inclined position, and a portion of it gone. This flagstaff was a few inches from the outside of the bunting beam, on the front portion of the engine. On arriving at Topeka the engineer made further examination, and found evidences on the left side of the engine that it had struck a horse. He then remembered a slight shock at the crossing in question, and at his request the conductor telegraphed back to the agent at Nortonville to get the section-foreman and a hand-car and go to the crossing to see what injury had been done. This order was obeyed, but nothing was found that night. The next morning, however, the section-men found that Hill’s horse had been knocked a considerable distance and killed ; that the cart was broken, and Hill had been thrown into the gully and badly injured. The section-men testified that, when asked how the casualty happened, he answered that he was drunk, and that he was pretty full. Mrs. Hill and a physician were sent for, and were soon on the ground and Hill was taken home,
The court instructed the jury that it was the duty of Hill to look and listen for an approaching train before 'going upon the track, and that if he failed to do so the administratrix could not recover in the action. In explanation of this the court said:
“ In considering the testimony in the case, as I have said to you casually, you have a right to take into consideration whatever common knowledge you have as intelligent men of how men do conduct themselves under the circumstances alleged to have surrounded this injury. And you have a right to consider all the testimony in determining whether he did do what the law required of him, judging it from the circumstances, because there is no testimony of an eye-witness as to what was actually done — from all the circumstances, taking into consideration the instincts of the man, his instinct of self-preservation, and anything else that would throw any light upon the question of whether or not he did take the proper precaution before entering upon this crossing.”
No exception was taken to this instruction, and, besides, we think it it well supported by the authorities. In Dewald v. K. C. Ft. S. & G. Rld. Co., 44 Kan. 586, 591, this court held that a jury may infer ordinary
The judgment will be affirmed.