47 Kan. 107 | Kan. | 1891
Opinion by
This was an action brought by Chester R. Plaskett, by his next friend and father, G. R. Plaskett, against the Atchison, Topeka & Santa Fé Railroad Company, for damages alleged to have been caused by the negligence of the defendant. The action was tried before the court and jury in McPherson county, and resulted in a verdict and judgment for $6,000 for the plaintiff. A number of errors are assigned, for which a reversal is asked.
The undisputed facts in this case are: That on the 5th day of December, 1887, a freight train consisting of 27 or 28 cars passed through McPherson, between three and four o’clock in
“1. Did the plaintiff, Chester R. Plaskett, take hold of defendant’s train ? Ans. Yes.
“ 2. If yes, was the said train in motion and moving and being moved at the time plaintiff took hold of it? A. No.
“ 3. Did the plaintiff attempt to get on the defendant’s train while the same was in motion ? A. No.
“4. Did the plaintiff know that there was danger in attempting to get on the defendant’s train under the circumstances? A. No.
“ 5. If your answer to the last question be no, state fully*109 the reason that he did not know of said danger. A. He was too young to know danger.
“6. Was the defendant guilty of willful and gross negligence toward the plaintiff under the circumstances? A. They were guilty of gross negligence, not willful.
“ 7. If yes, state fully in what such willful and gross negligence consists ? A. In the train-men knowing this place was frequented by school children, and not being on the lookout.
“8. Was the defendant guilty of ordinary negligence under the circumstances? A. Yes. •
“ 9. If your answer to the last question be yes, state particularly in what said negligence consisted. A. The train-men not being at their proper places.
“10. How many school children necessarily used the sidewalk and crossing where the accident occurred ? A. From 40 to 60.
“11. If you find for the plaintiff, how much damages do you allow him for physical pain and mental suffering? A. One thousand dollars ($1,000).
“12. How much do you allow — how much damages do you allow plaintiff as the natural and probable result of the injury ? A. Five thousand dollars ($5,000).
“13. How much do you allow plaintiff as exemplary damages ? A. 000.
“14. Did the acts of the plaintiff contribute to the injury? A. Yes.”
The first, and perhaps the only question for our determination in this case is, whether the railroad company was guilty of any negligence, or violated any duty which it owed to this child, as it ran its train through the city of McPherson. It is unnecessary for us to discuss the different degrees of negligence, for the reason that most courts of last resort, notably the supreme court of the United States, fail to recognize any negligence unless it be culpable. The findings of the jury, upon which negligence is predicated in this case, consist in the fact that the train-men knew that the crossing where the accident occurred was frequented by children going to and from school; that they were not on the lookout for persons crossing the track, or in a proper position upon the train to prevent persons from climbing on the ears. These were the only findings imputing negligence to the defendant below. It was a
But it is claimed that the railroad company did owe to this child the duty of active vigilance, to see that he was not injured; that the condition of things at the crossing in question, the population of the city, and the almost constant travel over the railroad track, being but a block from the school-house where 700 or 800 children were in attendance; and that the safety of these children demanded the utmost care and the greatest precaution upon the part of the company. It is doubtless true that this crossing was used a great deal by children going to and from school, and it therefore became necessary to exercise a great degree of care to prevent accidents, but the regulation of this and the other crossings rested primarily with the city authorities, and the failure to properly guard these crossings can hardly be charged as negligence upon the part of the defendant when no ordinance of the city required it. To uphold the verdict and judgment in this case, there must be some negligence chargeable to the railroad company. The tender years of the child may indeed excuse him from
“ In all courts culpable negligence consists in the failure to exercise the amount of care required, whether that amount be slight, ordinary, or great, and whether the corresponding degree of negligence be called gross, ordinary, or slight, or merely negligence. In the present case, we take it that all the parties having any connection with said accident were required to exercise that degree of care and diligence which an ordinarily prudent person would exercise under.like circumstances. This is ordinary care, and the failure to exercise it would be ordinary negligence, or culpable negligence, or, as some courts would say, merely negligence, and if all the parties in this case exercised ordinary care, then no one was guilty of culpable negligence. Now, all negligence, to be culpable, necessarily implies the failure to properly perform some duty. Now, what duty did the railroad company owe to Charles W. Heuigh which it did not properly perform? No relation existed between them. He was not a passenger, nor an employé, and had no business with the railroad company of any kind or character. He had no right to climb upon said car as he did, nor to touch it, nor even to go upon the company’s premises. Technically, he was a mere trespasser, and the company owed to him no duty except such as it owes to trespassers in genera], or except such as it owes to all mankind. We have heretofore held that all persons must use their property and conduct their affairs with reference to the rights of all other persons, and with reference to all known or anticipated surroundings, and that even trespassers have a right to expect that such will be done. (K. C. Rly. Co. v. Fitzsimmons, 22 Kas. 686, 690, et seq.; K. P. Rly: Co. v. Brady, 17 id. 380, 384, et seq.) And we will still adhere to this doctrine. But no person is bound to anticipate something which is not likely to occur, or to so conduct his affairs as to prevent accidents which are not likely to happen. This has reference where no specific duty exists, but only such general duties as all mankind owe to each other.” (C. B. U. P. Rld. Co. v. Henigh, 23 Kas. 347.)
See also the case of A. & N. Rld. Co. v. Flinn, 24 Kas. 627.
We recommend a reversal of the judgment of the court below.
By the Court: It is so ordered.
The case of A. T. & S. F. Rld. Co. v. Plaskett, No. 5665, was submitted with the case of the same title, also from McPherson district court. All of the questions involved in this case were also involved in that, and the judgment of the court below is reversed upon the authority of that case.