98 Kan. 133 | Kan. | 1916
The opinion of the court was delivered by
This is an appeal from a judgment awarded to O. W. Jones against the Atchison, Topeka & Santa Fe Railway Company as damages for personal injuries sustained by him while attempting to board one of the defendant’s trains. The accident occurred on the morning of August 28, 1914, at the defendant’s station in Mayfield, Kan. Jones went to the station with the intention of taking the local freight that arrived at that place about seven o’clock in the morning, and which had just pulled in when he reached the station. Finding the ticket oifice closed, the plaintiff went out to the train where the station agent and the conductor and brakeman of the train were unloading freight from one of the cars. The plaintiff testified that he asked the agent, who was working inside the car, for a ticket, but received no response, although the plaintiff was only six or seven feet away. He remained there until the railroad employees were through working in
The defendant insists that the injury suffered by the plaintiff was the result of his own negligence, and also that in submitting the case to the jury the correct rule of the plaintiff’s responsibility Was not stated by the court. Some testimony was offered, tending to show, that the injury resulted from the failure of the defendant to take precautions for the safety of the plaintiff when he was attempting to board the train, but the degree of negligence that would make the defendant liable was not correctly stated. Ordinarily a carrier is bound to exercise the highest degree of care for the safety of its
“That all freight trains to which a caboose is attached shall be obliged to transport, upon the same terms and conditions as passenger trains, all passengers who desire to travel thereon and who are above the age of fifteen years, or who, if under fifteen years, are accompanied by a parent*136 or guardian or other competent person, But no freight train shall be required to stop to receive or discharge any passenger at any other point other than where such freight train may stop; nor shall it be necessary to stop the caboose of such trains at the depot to receive and discharge passengers: Provided, That on such trains the railroad companies shall only be liable for.their gross negligence: And provided further, That this act shall not be construed to apply to freight trains on main lines, the most of which train shall be composed of cars loaded with live stock.” (Gen. Stat. 1909, § 7123.)
In the previous legislature of 1907 an act was passed requiring railroad companies to carry all persons except certain minors on freight trains, and providing, too, that they might limit their liability to passengers as against anything but willful negligence. (Laws 1907, ch. 274.) In a case where that act was under consideration it was held that mixed trains, consisting of freight, passenger, mail and baggage cars, regularly engaged in carrying passengers, such as are usually operated on the branch lines of the state, were not within the meaning of the act. (Schwartz v. Railway Co., 83 Kan. 30, 109 Pac. 767.) It may be assumed that the legislature has implied power to require carriers to take passengers on freight trains, and also to fix the measure of their responsibility for injuries suffered by passengers choosing that means of travel. Persons above fifteen years of age, as well as those younger who are accompanied by guardians or competent attendants, may elect to take the risk of traveling on a freight train, but the legislature has said that those who venture on such trains have no right to ask more than slight care and can hold the carriers for nothing less than gross negligence. In the absence of statutory standards of negligence the courts of Kansas have generally ignored the classification of negligence into the degrees of slight, ordinary and gross, and have held that in each case the true measure is due care; that is, the care and diligence proportionate to the-risk and which the peculiar circumstances of the case demand. (Railway Co. v. Walters, 78 Kan. 39, 96 Pac. 346.) Although comparative negligence has been discarded, the degrees of negligence have been recognized in this state for some purposes. (K. P. Rly. Co. v. Pointer, 14 Kan. 37; K. P. Rly. Co. v. Kessler, 18 Kan. 523; A. T. & S. F. Rld. Co. v. Morgan, 31 Kan. 77, 1 Pac. 298; Winstead, Sheriff, v. Hulme, 32 Kan. 568, 4 Pac. 994; Cady v. Case, 45 Kan. 733, 26
The judgment is reversed and the cause remanded for a new trial.