83 P. 987 | Kan. | 1905
The opinion of the court was delivered by
Plaintiff’s husband was killed at a railway-crossing one block west of the passenger-station in the city of Emporia, where defendant company has three tracks extending east and west on.Third avenue. The north track is for west-bound trains, the middle one for east-bound trains, and the south one for trains in either direction from the railway yards, which lie immediately west of the street-crossing. The. middle track extends straight west for more than half a mile. In the evening Mr. Hoopes was returning from his work to his home, which was south of the tracks. He came to the crossing on the east side of the street, and
The mail train was running at the rate of thirty miles an hour, without ringing the bell or sounding the whistle, and its negligence, as the case stood at the close of plaintiff’s testimony, is conceded. The only question, however, is whether the contributory negligence of plaintiff’s husband was such as to bar her right to recover. (U. P. Rly. Co. v. Adams, 33 Kan. 427, 6 Pac. 529; Dewald v. K. C. Ft. S. & G. Rld. Co., 44 Kan. 586, 24 Pac. 1101, and cases cited.) It appears that the clear space between the tracks was about nine feet, and between the passing trains six feet. Mr. Hicks, who was a witness, attempted to cross the tracks from the same direction and side of the street and at -the same time as the plaintiff’s husband, except that he stopped on the east side of the street, between the same tracks, waiting for the freight-train to pass, and when the fast mail came in from the west was standing about twenty feet east of Hoopes, but not so close to the middle track. He likewise failed to observe the approach of the train from the west until about the instant it struck deceased, and barely saved himself by stepping away from the middle track and nearer the passing freight. He testified that the sun was low in the west at the
This case cannot be distinguished from that of Railway Co. v. Withers, 69 Kan. 620, 77 Pac. 542, 78 Pac. 451. In that case Withers, in company with another person, started along a sidewalk at a railway-crossing going to his home. As they came near one track they observed a train switching along another track, which obstructed their progress and caused them to halt on or near the first track. The court said:
“Much evidence was introduced to show that the deceased men were standing upon track 4; it seems highly probable that they were, though the jury found that they were not; but whether they were exactly upon the track or not seems of small moment, for the fact is that if they were not between the rails they were in a place of equal danger. It was not necessary for them to stand in a place of danger, as they could have stopped west of track 4, or could have safely stood between tracks 3 and 4. . . . We are of the opinion that the facts shown clearly prove the culpable negligence of the deceased, and that the company was thereby relieved from liability for their death. They knew the conditions which surrounded them. They were in the full possession of their faculties. They knew they were within the limits of the yards, with its many tracks. They saw one train occupying the track in front of them. They knew that the other tracks were in frequent use for a like purpose, and that at any moment any one of the other tracks might be occupied by moving cars. They knew that to stand upon a track, or near enough to one to be hit by a moving car, was a dangerous position. Knowing all these things, and being plainly warned that they were in and upon this network of tracks, it was their plainest duty to see to it that they did not halt in a place of danger. There was ample room for them to stop in a place of safety; others did so.” (Pages 623, 624.)
The evidence hardly warrants the claim that Hoopes became momentarily confused and bewildered. It appears that when he was struck he was standing looking south toward the freight-train, and, so far as the evidence discloses, knew nothing of the approach of the train that killed him. In a case where the person injured is placed in peril through the negligence of another, and there is evidence from which it might be inferred that he became confused and bewildered by the sudden and impending danger, it is ordinarily for the jury to say whether, under the circumstances, he acted with reasonable care. But “when two ways are open to a person, one of which is obviously safe and
The view taken by the trial court is sustained by so many rulings of this court that it seems unnecessary to refer to more of them. The judgment is affirmed.