55 Kan. 536 | Kan. | 1895
Lead Opinion
The opinion of the court was delivered by
James M. Campbell, as administrator of the estate of David G. Campbell, deceased, brought this action to recover damages for the death of David G. Campbell, alleged to have resulted from the gross negligence of the railroad company. In the petition it .was averred that on November 11, 1890, in the daytime, David G. Campbell was walking upon the railroad-track of the company, near the .village of Merriam, but not at or upon any railroad-crossing, and that while so walking, a passenger-train approached on the same track, and going in the same direction,
It appears that Campbell resided with his family upon a farm about one-fourth of a mile from the railroad-track and the town of Merriam, where he had resided for many years. A highway called “Main street,” running east and west past Campbell’s farmhouse, crossed the railroad-track, to the post-office and other buildings. The railroad runs north and soutli through Merriam. Between the Campbell farm and the railroad was a highway, running parallel with the railroad, from the town to Merriam park. On November 11, 3890, at about 10 o’clock a. m., Campbell came from the post-office east of the track, walked west on Main street until he arrived at the railroad-track, and then turned south toward Merriam park. The track had recently been changed, and the men were then engaged in ballasting and surfacing a portion of the track over which Campbell was walking. A passenger-train going south was due about that time, and as the line of the road was straight there was an unobstructed view for a considerable distance up and down the track. A passenger-train came from the north, traveling in the same direction that Campbell was, composed of an engine, tender, baggage-car,
It is clear from the testimony that he was a conscious trespasser, and that, under the circumstances, his conduct was recklessly negligent. A railroad-track, between crossings, belongs exclusively to the
“A railway company has exclusive right to occupy, use and enjoy its railway-tracks, . . . and such exclusive right is absolutely necessary to enable it to properly perform its duties, and any person walking upon a railroad-track . . . without the consent of the company is held in law to be there wrongfully, and therefore to be a trespasser; and in case of an injury happening to such person while so trespassing upon it, from the movement or operation of the cars of the company over it, he is -without remedy, unless it be proved by affirmative evidence that the injuries resulted from negligence so gross as to amount to wantonness.”
See, also, Railway Co. v. Whipple, 39 Kas. 531; Tennis v. Railway Co., 45 id. 503; Railroad Co. v. Todd, 54 id. 558.
“Even if he erred in his judgment as to the probability that the plaintiff heard the signals and would step aside before the train should reach him, and hence erred as to the time when he ought to have reversed his engine and applied the brakes, there is nothing to warrant the belief that he acted in reckless disre*543 gard of the plaintiff’s safety.” (Johnson v. Truesdale, 46 Minn. 345.)
See, also, Railway Co. v. Judd, 36 N. E. Rep. (Ind.) 775, and cases cited; High v. Railroad Co., 112 N. C. 385; Finlay son v. Railroad Co., 1 Dill. 579; Railroad Co. v. Harman, 8 S. E. Rep. (Va.) 251; Reardon v. Railway Co., 114 Mo. 384; Beach, Contr. Neg. 394; 2 Rorer, Rids. 1027, 1032.
The judgment of the district court will be affirmed.
The evidence offered by the plaintiff tending to show gross negligence ■ on the part of the engineer is very weak, yet I am not prepared to say that it is wholly wanting. It is clear that the engineer saw the deceased on the track, and also observed that he did not heed the first signals that were given, and that he could have avoided running over him. So much being shown, I think the question should have been left with the jury to say whether or not there was gross negligence. But the proposition advanced in the opinion to which I desire to enter my especial dissent is that the engineer had a right to presume until the last moment that Campbell would leave the track, and not be run over. I am aware
Concurrence Opinion
I concur in the syllabus and in the opinion of Mr. Justice Johnston, and I do not think that either is justly subject to the criticism made by Mr. Justice AlleN. And yet the doctrine stated in the opinion to the effect that ‘ ‘ the engineer had a right to presume until the last moment” that Campbell would heed the warning and leave 'the track in time to avoid the injury, although well supported by the authorities, might easily be misinterpreted in some cases. I do not understand it to mean that the engineer need not check the speed of the train until it has actually come upon the trespasser, but he may presume that such person will get off until the last moment in which it would or ought to seem practicable to stop the train before colliding with such