Atchison, Topeka & Santa Fe Railway Co. v. Hamlin

73 P. 58 | Kan. | 1903

The opinion of the court was delivered by

Smith, J. :

Summarizing those findings of the jury which were most favorable to the plaintiffs below, it appears that the train was coming east, and that Devine, the foreman, when he warned the men to leave the track, was standing about 300 feet west of the deceased. The men east of Hamlin did not hear Devine’s warning, and did not leave the track when he shouted. Hamlin stood on the north side of the track facing south. The engine struck him on the right side. The track ran nearly east and west. The wind and the noise of the men at work on the track between him and the train prevented Hamlin from hearing the blasts of the whistle or the rumbling of the train as it approached. Devine,.the foreman, did not shout loud enough for a man in the exercise of ordinary care and prudence to hear at the distance Hamlin was from him. All the men, except Hamlin, did not clear the track in the usual and ordinary way. "The train was running from twenty-five to thirty-five miles an hour.

The findings on which the railway company relied to defeat a judgment for plaintiff below were in substance as follows : Train No. 2 was expected by the men laying the rails. They had taken out half of the spikes on each rail and left the others in place, so that the train might pass safely. The engine whistled at Partridge, five or six miles west of the place of accident. It was heard by a part of the men at least. 'The whistle was again sounded at a road-crossing about one-half mile west of the steel gang. Devine, the foreman, signaled the train on its approach toward the men in his charge by what is called in railroad parlance the ‘high-ball’ signal, indicating that it was safe for it to come on. The engineer acknowledged the signal by two blasts of the whistle when he was 450 feet from the working gang and 750 feet west of Hamlin. The blasts of the whistle could be heard about five miles. The foreman, when 300 feet west of Hamlin, warned the men once or twice to clear the track before the train reached them. All the men left the track except Hamlin. The bell was ringing. The rumbling of the train could be heard before it reached Hamlin. The deceased had good eyesight and hearing. There is a ringing sound of the rails when a heavy train is approaching, which can be heard 300 or 400 feet in front of the engine by one standing over or near the rail. The foreman gave the signals to the men in the usual and ordinary way. A man standing near the track at the time of the accident, who was paying reasonable attention, could hear the rumbling of the train 600 feet.distant. The engineer and Devine, the foreman, performed their duties in the usual and ordinary manner. The morning when the accident happened was clear and bright, and some of the men saw the smoke of the train five miles off. Nine to twelve trains passed the steel gang every day. The deceased had been working about a month relaying track. He was familiar with the manner in which trains passed the men, and was familiar also with the time when train No. 2 went east. There was nothing to obscure an approaching train except the men at work.

Conceding that the foreman in charge of the men working on the track was negligent in not making his warnings understood above the noise made by the workmen and the blowing of the wind, the fact remains that he gave such warnings in the usual and ordinary manner, and nine to twelve trains passed the men in his charge every day. Beyond this, it was established that when the engine whistled five or six miles west of the place of accident some of the men heard it. It again whistled at a road-crossing one-half mile to the west. Upon its nearer approach, it answered the signal of Devine by giving two blasts of the whistle within 750 feet of Hamlin, and within. 450 feet of some of his coemployees. All the men left the tráck except Hamlin. This last circumstance is entitled to special consideration.

The deceased, when he saw his fellow workmen, thirty-five or forty in number, leaving tb.e track, was certainly apprised that there was a necessity for all of them suddenly to stop work. A step or two would have removed him to a place of safety. He gave no heed to this abandonment of the work by all' the others, but remained in his. place until struck. The jury said that the men did not leave the track in the usual and ordinary way. If their manner of leaving was different from what it commonly was when a train passed, this of itself ought to have excited his attention. Again, knowing the frequency with which trains passed, and expecting this particular train, Hamlin was bound to take reasonable care for the preservation of his own safety, and the finding was that, with reasonable attention, a man standing near the track could have heard the rumbling of the train 600 feet distant.

It is true that in finding No. 53 the jury answered that Hamlin was prevented by the wind and the noise made by the other workmen from hearing the rumble of the train, yet, taking the two findings together, the fact remains that with reasonable attention a man situated as he was could have heard the rumbling of the train 600 feet distant, notwithstanding the wind and the noise. The element of “reasonable attention” was lacking in finding No. 53. The two findings can be harmonized only by concluding that Hamlin was not paying reasonable attention to his surroundings. In finding No. 5, the jury said that the train which struck the deceased was expected by the steel gang. The word “expect” is defined: “To look for (mentally) ; to look forward to, as to something that is believed to be about to happen or come.” With his mind prepared for that which occurred, namely, the coming of the train, and his indifference to the actions of those around him, who left the track on its approach, coupled with his familiarity with the running of the trains which passed him from nine to twelve times a day during his thirty days' service, we think the deceased was guilty of such contributory negligence as to prevent a recovery by plaintiffs below. In Railway Co. v. Judah, 65 Kan. 474, 476, 70 Pac. 346, it was said :

“A signal by whistle or bell in such cases is to give warning of an approaching train. When a traveler, about to cross a railroad-track, has notice of that which a whistle or bell signifies, the giving of such warnings is a work of supererogation as to him.”

It is inconceivable that the deceased alone, of all the men, thirty or forty in number, did not hear the warnings or see the train. It is difficult also to give credence to the finding that the deceased could not see the approaching train, there being nothing to obscure it except the men at work. Some of the men saw the smoke of the engine and heard it whistle five miles distant. The day was clear and bright. Many of the findings are inconsistent with one another, and others evasively answered. It is evident that the jury did not answer the particular questions of fact without any reference to their effect on the general verdict. The answers returned affecting the question of Hamlin’s contributory negligence, excusing his presence on the track when all the others had moved out of danger, were strained and irrational.

The judgment of the court below will be reversed and a new trial ordered.

All the Justices concurring.