86 P. 468 | Kan. | 1906
Clarence L. Coy, the son of Clarence E. Coy, was seriously injured by being run into by a car of the Missouri Pacific Eailway Company. His
The evidence showed that a freight-car was standing upon a side-track laid along a public street in Iola, and was being unloaded. Several drays were standing near the car, and the boy, seeing them from a distance, came that way for the purpose of getting a ride on one of them. At a distance of about forty feet from the car he went upon the track on which it stood and walked between the rails until he had almost reached it. He then stooped over to gather some snow that lay on the track. At this moment a train, or a part of a train, was .backed against the farther end of the car, giving it a sudden impetus toward him. It struck him, knocked him down, and dragged him for some distance, breaking his arm and inflicting other injuries. There was evidence that no warning was given of the approach of the train, and the negligence of the company in that respect may be regarded as established. The demurrer was obviously sustained upon the theory that the boy’s own negligence contributed to his injury and precluded a recovery.
Former decisions of this court and of other courts have established the doctrine that it is negligence, as a matter of law, for one to walk or stand upon a railroad-track when there is no necessity or occasion for so doing, and that no recovery can be had for any injuries received under such circumstances from a moving car or engine and not knowingly or wantonly caused. (Railway Co. v. Schwindt, 67 Kan. 8, 72 Pac. 573; Zirkle v. Railway Co., 67 Kan. 77, 72 Pac. 539; Railway Co. v. Withers, 69 Kan. 620, 77 Pac. 542, 78 Pac. 451.)
In the present instance the boy was not crossing the track, and there was no reason why he should have been upon it when the car was struck. The car itself prevented his seeing the approaching train. The case clearly falls within the doctrine stated unless this re-