44 Kan. 586 | Kan. | 1890
The opinion of the. court was delivered by
This was an action brought by Mary A. Dewald, as administratrix of the estate of Edward Dewald, deceased, against the Kansas City, Fort Scott & Gulf Railroad Company, to recover damages alleged to have resulted from the negligence of the defendant in wrongfully causing the death of the deceased. The action was brought under the statute, to recover damages for the benefit of the next of kin. The petition alleged as negligence, that the plaintiff's intestate was a passenger for hire, whom the defendant had for such hire agreed to carry from Kansas City to Rosed ale; that the car in which plaintiff's intestate rode was stopped at a point in Rosedale for the purpose of letting its passengers alight therefrom; that while alighting the deceased was run against and killed by an engine which had been cut from the car and was following the car on a parallel track. The case came on for trial before the court with a jury. After all the evidence was introduced on the part of the plaintiff, the railroad company interposed a demurrer on the ground that no cause of action had been proved. The demurrer was sustained by the court, and judgment rendered in favor of the company and against the plaintiff for costs; to which ruling and judgment the plaintiff excepted, and filed a motion for a new trial, which motion was overruled; to which ruling of the court the plaintiff also excepted, and brings the case to this court for review.
The evidence offered by the plaintiff tended to show that
There is no evidence tending to show that the railroad company, or any of its agents, purposely or wantonly injured the deceased. As the car had not stopped.when the deceased got off, no negligence can be imputed against the railroad company, or its agents, in running the engine and tender on the track parallel with the one the passenger car was on, as to the persons in that car, because it could not have been anticipated that any person in the car would be so careless or reckless as to jump off while it was moving quite rapidly, and before it reached its usual stopping-place. Again, it appears from the evidence that but for the deceased’s own negligence he would not have been injured. He left the car when it was moving quite rapidly, and could not have listened or looked for the approaching engine.
Under such circumstances as are disclosed in this case, a passenger cannot voluntarily jump from a moving car, thereby placing his life and limbs in peril, and then claim to be free from fault. (Parsons v. N. Y. C. Rld. Co., 37 Hun, 128; Commonwealth v. B. & M. Rld. Co., 129 Mass. 500; Weber v. K. C. C. Rly. Co., 100 Mo. 194; Burrows v. Erie Rld. Co., 63 N. Y. 556; 2 Shearman & R., Neg., 4th ed., note, p. 359; Reibel v. C. I. St. L. & C. R. Rld. Co., 17 N. E. Rep. 107; Beach, Contrib. Neg., 156, § 52; Patt. Rly. Acc. Law, §§ 22, 24, 259; 2 Shearman & R., Neg., 4th ed., § 525; U. P. Rly. Co. v. Adams, 33 Kas. 427; Clark v. Mo. Pac. Rly. Co., 35 id. 350; A. T. & S. F. Rld. Co. v. Townsend, 39 id. 115.)
Upon the oral argument it was insisted by counsel for the plaintiff that the evidence was conflicting as to whether the train was moving or not when the deceased jumped off, and therefore the trial court erred in not submitting it to the jury. We have carefully examined the record, but do not so understand the evidence introduced. Two witnesses only were called to prove the alleged negligence of the railroad company. One of these, J. L. Worthy, testified that “the deceased stepped off of the hind end of the coach at the west side just as the engine was coming along, and it struck him and gave him his injuries from which he died.”
*592 “ Q,. State whether or not the car you were on was moving at the time you were getting off ? A. I don’t think it was, but I could not positively state.
“Q. You don’t think it was? A. No, sir; I don’t think it was moving; I think the car was standing still, although I would not be positive about that.
“ Q. Which side did you get off on ? A. I got off on thé west side.
“Q,. The same side as Dewald? A. Yes, sir.
“Q. Did you get off before or'after this man? A. After.
“Q. You said that you could not tell whether this coach was in motion at the time this man got off? A. No, sir.
“Q,. You did not know about that? A. No, sir.”
This witness did not testify or intend to testify that the car was stopped at the time that the deceased stepped off. The other witness, H. D. Triekey, testified:
“ Q,. Were you near him [Dewald] at the time he sustained the injuries of which he died? A. Yes, sir.
“Q. Did you see him on that day? A. I saw him on the train.
“ Q. Did you see Mr. Dewald the evening when he got off the car ? A. I did not see him when he got off.
“Q. Where were you — on the car, when you saw him? A. No, sir.
“Q. I will ask you if you saw him struck by the engine? A. No, sir; I did not.
“ Q,. Where was he when you first saw him off the car ? A. He was lying on his face, with his head nearly between two ties, close to the rail; quite close — six inches or thereabouts.
“Q, There wasn’t any road-crossing where he was picked up? A. No.
“ Q,. How far was it from where he was picked up to where the coach usually stood when the engine was hooked onto it in reversing? A. It must be something in the vicinity of perhaps half-way on the switch.
“ Q,. Half way from the north switch ? A. I couldn’t say exactly, but somewheres in the vicinity of half-way — perhaps a little further north.
“Q. What I mean is, how far was it from where he was picked up down to where the coach usually stood when it was hitched onto the engine ? A. It might be fifteen car-lengths.
“Q,. Then the coach at that time, at the time he was picked*593 up, had not got down to the place where it usually stood ? A. No, sir.
“Q,. You had not attempted to get off the coach yet? A. Not quite when he had. I was getting off here in order to get around the end of the rolling-mill.
“Q,. Had he got down off of the car before you came out on the platform ? A. I couldn’t say; I didn’t notice him on the platform at all.
“Q. Had the coach yet stopped before you got off? A. No, it hadn’t.
“Q. You got off when it was in motion? A. Yes, sir.
“ Q,. And how soon after you got off before you saw Dewald lying there? A. I might have gone somewhere in the vicinity of two rods before I saw him, because I was running with the train.
“Q,. You got off when it was in motion and was running with it ? A. Yes, sir.
“Q,. You say you ran how far? A. Possibly it might have been two rods. I heard some one holler there was a man hurt.
“Q. How far back did you go to where Dewald was? A. Well, I don’t hardly think it was two rods, though it might be.
“Q. You did not mean to say you were standing on the rear platform and saw the engine coming towards you, to see how fast it was coming? A. When I jumped off I saw the engine, and the engine was ahead.
“Q,. It was passing the coach there? A. Yes, sir, passing the coach there; judging that I might be traveling at the rate of the car — six miles an hour — and as soon as I struck the ground I commenced to stop.”
The unavoidable conclusion, from the evidence of Trickey, is that he got off the train while it was in motion; that he got off after, or about the time, Dewald jumped off; and that when he, Trickey, got off, the car was going about six miles an hour. It must have been going six miles an hour when Dewald jumped off.
To have sustained the allegations in the petition, the evidence must have shown that the car upon which the deceased was riding had stopped when he jumped or got off; also, that the car had stopped at a point in the city of Rosedale
The judgment of the district court must be affirmed.