Chicago, Rock Island & Pacific Railway Co. v. Clinkenbeard, 84 P. 142

Chicago, Rock Island & Pacific Railway Co. v. Clinkenbeard

84 P. 142 | Kan. | 1906

The opinion of the court was delivered by

Smith, J.:

Many errors are assigned by the railway company, among which are the refusal of the court to sustain its demurrer to the plaintiff’s evidence, the refusal of the court to give certain instructions asked by its attorneys, and the refusal of the court to set aside the verdict and special findings of the jury and grant a new trial. Except as to the last *562objection we think the rulings of the court were correct. The instructions asked by the defendant, so far as they were correct statements of the law, were embraced in the instructions given by the court. Indeed, we think the instructions given to the jury by the learned judge were an admirable exposition of the law as applicable to every phase of the facts presented by the pleadings and evidence.

Yet the jury seem to have overlooked one very important element affecting the defendant’s liability, viz., to make it the duty of the engineer to stop his train under the circumstances shown in this case it was essential: (1) That he should have seen or have been in such a position that he ought to have seen that plaintiff was in a place of danger from the approaching train; (2) that it should have been evident to the engineer that the plaintiff could not, or would not, so change his position as to be out of danger before the train would reach him. (C. R. I. & P. R. R. Co. v. Austin, Admx., 69 Ill. 426; Fla. Cen. & Pen. R. R. Co. v. Edward Williams, 37 Fla. 406, 20 South. 558; Campbell v. K. C. Ft. S. & M. Rld. Co., 55 Kan. 536, 540, 40 Pac. 997.) The court below correctly stated this proposition in its eleventh instruction. The twelfth, thirteenth, nineteenth and twenty-third instructions, however, gave the first but omitted the second requisite of liability as above stated. The jury should, of course, have read all of the instructions together, and should have read or considered the four instructions last named as modified by the eleventh. It is quite probable, however, that the jury may have been misled by the omission. The submission of questions Nos. 3 and 4 requested by plaintiff, omitting as they did the second element of liability, tends to strengthen this probability. With the answers thereto, the questions were as follow:

“(3) Ques. If you answer question No. 1 in the affirmative, was the plaintiff at such time in a dangerous position? Ans. Yes.

*563“ (4) Q. If you answer question No. 3 in the affirmative, did engineer Mason see, or by the exercise of reasonable and ordinary care and diligence should he have seen him, the plaintiff, in such dangerous position? A. Yes.”

In answer to the next question the jury said that the engineer saw the plaintiff’s danger in time to have stopped the train before the collision. It is nowhere specifically found by the jury that the engineer saw, or ought to have seen, that plaintiff could not, or probably would not, get out of danger before a collision would occur. There is a presumption, however, that the jury found all facts necessary to sustain the general verdict. If, then, it is to be presumed that the jury found this essential fact in favor of the plaintiff, the question arises', Was there evidence to support such a finding?

The only evidence of the width of the wagon is that its extreme width from hub to hub was five feet and eight inches, and that the bridge-irons were twelve feet, the railroad-ties fourteen feet, and the other loaded wagon ten feet north of the north rail of the main track. The plaintiff testified that he drove as close to the bridge-irons and ties as possible. If he had left one foot of space between his wagon and the bridge-irons there would still have been over five, feet clear from his wagon to the north rail of the track in which plaintiff could have walked. It is true the plaintiff said he was inside the north rail of the track, on the ends of the ties or close to the ends of the ties, all the time after he entered the lane between the obstructions and the track. The engineer said the plaintiff was walking along five or six feet from the north rail from the time he entered the lane till the train was within about fifteen feet of him. The engineer was certainly about right in this estimate, or the plaintiff was walking several feet nearer the track than wás necessary, and could at any time have stepped nearer to his wagon and been out of danger.

*564Here is the situation: The engineer testified, and no witness disputed it, that he saw the plaintiff drive into this lane in plain sight of the approaching train. He had a right to assume that plaintiff was in the possession of all his faculties, knew of the approaching train, and that he had a team that was safe to drive into such a place. There was, in fact, plenty-of room for both man and team to keep clear of the track and train. So long as these conditions existed the engineer was under no obligation to stop his train, and hence was guilty of no negligence in failing to do so. But the plaintiff drove near the west end of the lane to the loaded wagon, which was two feet nearer the track than the other obstructions, and had to turn his wagon so much nearer the track. His wagon was long, and to get the hind wheels of his wagon two feet south he was obliged to turn his team much nearer the track. The watching engineer then saw the danger, sounded the alarm, and applied the air-brakes, but it was too late to stop the train. The plaintiff at that time had only about three feet between his wagon and the track, perhaps less at the front of his wagon, and the pilot-bar of the engine reached over eighteen inches of this space. He turned his horses away from the track, but he himself got nearer, either in trying to manage his horses or in trying to escape, and was struck and injured.

This is not a verbatim statement of the evidence of any witness, but is in substantial accord with the evidence of all, including the plaintiff, who testified as to what occurred after he reached the loaded wagon. There is some discrepancy as to the distance the engine was from the plaintiff at the time the danger signal was given and the air-brake applied, as might well be expected under the exciting circumstances, but no evidence justifies the finding of the jury that the engineer saw the plaintiff in such a dangerous position that it was the engineer’s duty to stop the train at a time when the engine was 200 feet or more away. Be*565sides, it is improbable that the jury would have made such finding had not instructions twelve, thirteen, nineteen and twenty-three permitted them to do so without further finding that the situation of plaintiff was such that it was apparent to the engineer that the plaintiff could not, or would not, move out of danger before a collision would occur. As a proposition of law this was not the situation of plaintiff until he drove between the loaded wagon and the track, and, even then, had the plaintiff’s horses been as indifferent to the approaching train as the engineer had a right to assume they were, in view of the reckless manner in which the plaintiff drove them into the lane, the plaintiff could easily have avoided a collision, though the space was narrow.

However, under all the circumstances shown by the evidence, we think it was the engineer’s duty immediately to stop the train as soon as he saw the plaintiff drive into the narrow space between the loaded wagon and the track, but we think the evidence fails to show that he did not do so.

The judgment is reversed and a new trial granted.

All the Justices concurring.