107 Kan. 486 | Kan. | 1920
The opinion of the court was delivered by
John J. Gaffney was struck by a motor car of the defendant in the railroad yards at Wichita, and from the injuries suffered he died. His widow brought this action alleging that his injuries and death were the result of defendant’s negligence in running the motor car at an excessive rate
We may assume, as counsel have done, that the negligence alleged against the defendant was established, and the only question left for decision is: Did the evidence of plaintiff show contributory negligence of Gaffney, which barred a recovery? He was foreman of a switch crew of the Kansas City, Mexico & Orient Railway company, which had a track across the tracks of the defendant near the place of the accident. At that point there is a tower-house and the person in charge of it controls the movement of trains and cars in that part of the yard. When Gaffney ran his train up to this crossing he stopped to await permission to cross and also to place in or receive from an interchange box near defendant’s tracks, slips or orders for the transfer of cars from one railroad to another. It appears that he left his engine and started forward to the interchange box, and in doing so had to pass over and across the tracks of the defendant. The accident occurred about 7 p. m. on a cloudy November night, and darkness had come. He was carrying a lantern and while going along or across the track he was struck by the motor car which was traveling at an estimated speed of thirty miles an hour. There was a rule of the terminal company which had control of the yards, limiting the speed of trains in the yards to fifteen miles per hour. The motor car of defendant had a headlight and that part of the car back of the motor in which passengers sat was also lighted. One witness said that there were no obstructions on the track of the defendant in the direction from which the train was coming for a mile south of the crossing and the headlight could have been seen for that distance, but that probably a person could not have ■told that it was a headlight on an approaching train at that distance. Another said it could , only have been seen about a quarter of a mile. A witness for the plaintiff, who was one of
In Limb v. Railroad Co., 73 Kan. 220, 84 Pac. 136, it was said:
“It has been frequently decided by this court that persons may not recklessly place themselves in a place of danger and then recover damages because of injuries received thereby.” (p. 223.)
It is said that since no witness testified as to whether or not Gaffney looked for an approaching car, that love of life, the instinct of self-preservation and the known disposition of men to avoid injury, give rise to the presumption that he exercised due care.' This presumption, “however, was overthrown by plaintiff’s own evidence and therefore cannot be indulged. (Dewald v. K. C., Ft. S. & G. Rld. Co., 44 Kan. 586, 24 Pac. 1101; Carlson v. A. T. & S. F. Rly. Co., 66 Kan. 768, 71 Pac. 587.)
Finding no error in the record, the judgment is affirmed.