80 Kan. 540 | Kan. | 1909
The opinion of the court was delivered by
Several assignments of error have been presented and argued, but in the view we have taken, one only need be considered. The plaintiff in error .complains of several instructions given to the jury by-the court, but it especially criticises those numbered 10' and 11, which read:
“(10) If you believe from the evidence that the plaintiff’s intestate saw the approaching train and without negligence on his part failed to observe from his position the unusual speed at which it was running, if' it was running at an unusual speed, so that his conclusion that he could safely cross before the train reached' the crossing was not an unreasonable one, he will be exonerated from contributory negligence on this, account; because it is not negligence in law for a person in the exercise of ordinary care and caution to cross a railroad track upon a road-crossing in front of an approaching train which he has seen and which, does not appear to him to be dangerously near, and which would not have been so in fact if it had not been running at an unusual rate of speed.
“ (11) No principle of law requires that a traveler in a vehicle should stop his team and wait the passing of an approaching engine and train if he discovers an engine and train on the line at such a distance as that in the exercise of reasonable care and prudence he believes he may safely proceed on his way and cross the track. In such a case the question of fact for the jury is, Did he use reasonable care and caution in determining whether or not he could safely cross the track?”
The rule of law stated in these instructions can not, as we view it, be applied to ordinary railroad-crossings. A similar rule has been upheld by this court when applied to the operation of street-cars in a city (Railroad Co. v. Gallagher, 68 Kan. 424, 429), but never to
If the rule in question were applied to railroads generally it would materially conflict with rules now generally recognized, and might seriously embarrass the transaction of the business of common carriers. It is now generally understood that an unusually high rate of speed is not of itself improper or negligent. In the open country, where no peculiar conditions exist which make it dangerous, and speed is not limited by statute,
“If, with full knowledge of the near approach of a train, a traveler attempts to cross in advance of it, and merely miscalculates his ability to do so in safety, there can be no recovery for a resulting injury.”
In support of the text numerous cases are cited, selected from many states. Any rule which encourages a race with an approaching train at every crossing would tend to increase the hazard at such crossings, impede the necessarily rapid movement of trains, and seriously embarrass their operation in locations where such restraint would be of very slight, if any, public protection. The criticism urged against the rule given
There were no witnesses who could testify whether or not the deceased took the precaution to look and listen for an approaching train before attempting to-cross the track. The jury were instructed that, in the absence of such evidence, the law presumed that he performed this duty in obedience to the universal instinct of self-protection. The condition of the track was such that, assuming that the deceased looked, he must have seen the approaching train, and, having seen it, must have concluded that the crossing could be made in safety. Upon the assumption that the speed of the coming train was not unusually great, this conclusion was probably fully justified; in fact, however, its speed was extraordinarily great. This mistake was fatal. Haste in crossing was imperative. This necessity does not seem to have been appreciated, and the deceased was overtaken. Such collisions would probably occur more frequently if the láw were as stated in the instructions in question. They could only be prevented by requiring all railroad trains to reduce their speed at every crossing so that travelers in the exercise of ordinary care could more accurately estimate the rate at which approaching trains might be running.
The tendency of these instructions to mislead the jury upon the question of contributory negligence under the facts of this case is too great to permit the verdict to stand. Other questions have been presented and discussed, but this disposes of the case, and nothing further need be considered.
The judgment of the district court is reversed, with direction to grant a new trial and proceed in accordance With the views herein expressed.