56 Kan. 559 | Kan. | 1896
I. The principal contention for the plaintiff in error is that the train on its road, being a mixed freight- and passenger-train, on the older .road, and within its yard limits, was entitled to take the crossing ahead of the freight-train on the Missouri Pacific road; that the engineer brought his train to a full stop at the proper distance from the crossing, gave the customary signal, and started forward, assurqing that the persons in charge of the Missouri Pacific train would concede his right to make the crossing first-; that the engineer and other employees of the plaintiff in error performed all their duties; that the injury is chargeable solely to the neglect of the employees of the Missouri Pacific company, and that it alone is liable for the plaintiff’s injuries. The fallacy of the position of counsel lies in the assumption that the employes of the plaintiff in error had performed their full duty to passengers on their train when they had done everything necessary to entitle them to go ahead over the crossing in advance of the train on the other road, and were absolved thereafter from all duty to look after the safety of the passengers. Persons charged with the conduct of a train carrying passengers are not so lightly relieved of responsibility. No such easy limits to their care can be allowed. It is clear, even from the testimony of the witnesses introduced by the plaintiff in error, that the train on the Missouri Pacific road was in motion at the time the train of the Chicago, Kansas & Western started toward the crossing, and that it did not stop until the collision occurred. This is not a case between the two companies to recover damages to property of one from the other. In such an action,
II. Error is assigned on the ruling of' the court excluding the rules made by the board of railroad commissioners governing the movements of trains at crossings. We shall assume, though without deciding the question, that the board of commissioners had the power to make such rules, and that the companies, when properly notified of them, would be bound to obey them ; yet we think the ruling of the court, that it was incumbent on the party offering them to first show that the Missouri Pacific Railway Company had been served with a copy of them, or in some manner informed of their provisions, was correct. No attempt was made to make any such showing. The letter by the secretary of the board to the first vice-president of the Missouri Pacific company, informing him of permission granted to another railroad to omit stopping one of its trains at a certain point, is clearly not equivalent to a service-of the rules on the company. These rules were in fact afterward admitted in evidence as a part of the rules governing the employees on the trains of the plaintiff in error. We think there was no error in the ruling of the court.
The other claims of error in the admission and rejection of evidence are without force. The error assigned on the instructions is, in substance, the main contention already disposed of, and rests on the claim that the employees of the company might abate their watchfulness, and safely rest on the presumption that the employees of the other company would do everything their duty required them to do. Under the testimony, there is no force in the claim that the damages awarded are excessive.