62 P. 321 | Kan. | 1900
Lead Opinion
The opinion of the court was delivered by
This was an action brought against the Atchison, Topeka & Santa Fe Railway Company by Caroline Beal, widow of Daniel Beal, to recover
Beal, at the time he was hurt, was crossing the alley track from south to north under the cars. He did not know before undertaking to cross that the moving train of cars was about to bump into the standing train of ears, nor had any warning been given to him and his fellow workmen of the approach of the train backing in from the west. It was his habit and that of his fellow workmen to cross from one side of the alley track to the other by crawling under the cars and over and under their connecting
In addition to these findings the jury returned a verdict for the plaintiff. Upon motion of the defendant, this verdict was set aside and judgment rendered on the findings for it and against the plaintiff. The plaintiff has prbsecuted error to this court. It would appear from the findings that the defendant was negligent in backing its moving cars against the standing ones around which the men were at work without the giving of any warning signals of approach. Counsel, upon oral argument, endeavored to exculpate the company by claiming that, on account of the number of trains all the time moving to and fro in the yards at Argentine, the giving of sounding signals was impracticable, because signals given by one train were liable to be mistaken by other trains for which they were not intended. No reference was made to any portion of the record justifying such exculpatory plea and therefore we cannot take it into account. Besides, the ringing of bells and sounding of whistles are not the only ways of giving warning of the approach of trains. We can conceive of no reason why the sending of a man in advance of the backing train to give warning of its approach might not have been practicable. We conclude, therefore, that the defendant was negligent,- and, for the purpose of considering the claim of liability
On the other hand, it must also be held that Beal ^was negligent — negligent to as great an extent as the defendant. He knew that moving cars were liable to back in upon the standing cars at any time. He knew that it was not customary to give signals or other warnings of their approach. He knew that it was therefore dangerous to crawl under the standing cars. He knew that there was a safer way. to cross over from one side of the track to the other. Had he stepped a few feet to the south he could have both seen and heard the approaching train backing in on the alley track. It is impossible in reason, therefore, to say that he was not guilty of negligence directly contributing to his own death. This, in fact, is admitted by counsel for plaintiff. It is contended, however, that .a plea of contributory negligence upon the part of the injured person will not lie as against a charge of gross, wanton and wilful negligence on the part of the one who inflicts the injury, and in support of this contention the following quotation is made from Judge Cooley’s work on Torts, 2d ed., 810:
“ Where the conduct of the.defendant is wanton and wilful, or where it indicates that degree of indifference to the rights of others which may be justly characterized as recklessness, the doctrine of contributory negligence has no place whatever, and the defendant is responsible for the injury he inflicts, irrespective of the fault which placed the plaintiff in the way of such injury.”
This is a trenchant and radical statement of law, and would seem to be comprehensive of the- facts of the present case and to justify the plaintiff’s claim of defendant’s liability. However, an examination of
‘ ‘ The fact that one has carelessly put himself in a place of danger is never an excuse for another purposely or recklessly injuring him. Even the criminal is not out of the protection of the law, and is not to be struck down with impunity by other persons. If, therefore, the defendant discovered the negligence of the plaintiff in time, by the use of ordinary care, to prevent the injury, and did not make use of such care for the purpose, he is justly chargeable with reckless injury, and cannot rely upon the negligence of the plaintiff as a protection. Or it may be said that in such a case the negligence of the plaintiff only put him in position of danger, and was, therefore, only the remote cause of the injury, while the subsequently intervening negligence of the defendant was the proximate cause.”
It will thus be seen, and especially when examined in the light of the authorities cited, that the rule of| non-liability for contributory negligence in case of in-? juries wantonly, wilfully or recklessly inflicted, does not apply where the injured person had, or should have had, knowledge of the grossly negligent habit or the impending reckless act of the injurer, and could have avoided their consequences by prudence and caution on his own part. Only when an act of con tribu-} tory negligence is performed without knowledge or apprehension that the reckless and wanton conduct of another will or may conjoin to produce an evil effect will the injured person be relieved from liability for the result of his own negligence. To say that one alive to the known or probable misconduct of another may, nevertheless, expose himself to the dangers
However, when one, although negligent himself, has no knowledge or can have no apprehension of the liability of another’s negligence conjoining with his own to produce an injurious effect, but the latter has such knowledge or can have such apprehension, but wantonly and recklessly proceeds to the fatal consequence when, by diligence and caution, he might have avoided it, the former will be held guiltless and the latter liable, because in such case the proximate cause of the injury is not the former’s negligence, but it is the negligence of the latter in failing to see that the former one had negligently placed himself in a position of peril. It is in respect to cases comprehensive of such a state of facts that the rule of Judge Cooley and of all the cases cited by counsel for plaintiff in error was declared. The precise subject is discussed at length in Beach on Contributory Negligence, 3d ed., section 54, et seq., and in 2 Thompson on Negligence, 1155, et seq., and the distinction we have drawn is pointed out and the- view we have expressed illustrated and enforced.
The contention of the plaintiff that persons have a right to work at dangerous employments, and that it cannot be said as matter of law that they, are negligent in doing so, and that Beal assumed no risks of the dangerous employment of cleaning out stock-cars, is apart from any question which the facts of the case raise. Admitted that the business of cleaning the cars
The judgment of the court below is affirmed.
Concurrence Opinion
(concurring specially) : I concur in the judgment of affirmance on the theory that the injury was not wilfully and wantonly inflicted by the defendant. If it had been done purposely and by design, it would have constituted more than negligence and become an act of aggression and violence, and contributory negligence would not avail as a defense. It is well settled “that if the ordinary negligence of the plaintiff directly or proximately contributed to his injury, he cannot recover unless the injury was intentionally and wantonly caused by the defendant.” (U. P. Rly. Co. v. Adams, 33 Kan. 427, 6 Pac. 529; Tennis v. Rapid Transit Rly. Co., 45 id. 503, 25 Pac. 876.) The contributory negligence of the plaintiff was clearly established, and, under the circumstances of this case, it necessarily defeats a recovery.