95 Kan. 441 | Kan. | 1915
Lead Opinion
The opinion of the court was delivered by
This action was brought by the administrator of the estate of Samuel H. Simmons to recover for his death caused by one of the defendant’s engines.
The action was prosecuted under the federal employer’s liability act (Part 1, 35 U. S. Stat. at Large, ch. 149, 4 U. S. Comp. Stat. 1913, §§ 8657-8665), the defendant being engaged in interstate commerce. The
“It covered the east track, all along the east side of that train running south. You couldn’t see a man any distance at all in it. That was true all along the east side of that train. I remember when the caboose reached the avenue — the caboose of the train that passed.”
As Mr. Simmons walked around the caboose and up between the tracks the freight train was moving south a very little faster than a man could walk at a good gait.
“I never discovered him any more. I was looking back towards town to see if there was another freight following this one. I did not see any object there in connection with any other train on the east track there. Just after Mr. Simmons passed the cattle guard south through this steam, I discovered an object, but I couldn’t tell exactly what it was, run by this freight train. Train No. 106 came north on the east track, passing that freight train that morning, yes sir. With reference to when Mr. Simmons went around the rear end of the caboose of the freight train and started south there, I did not see this train come up on the east track there. After Simmons went around there I did not see any object at all. I did not see the passenger train come north until after it had run through that steam. As it came through the steam I seen a dark object roll off of the pilot and afterwards discovered it was Mr. Simmons. . . . When I saw this object roll off of the pilot of the train, the steam had not evaporated enough so I could tell
Before Mr. Simmons started south it was suggested that the hand car be put back on the track, and it appears that he directed that this be not done as No. 106 was due. Another witness who appears to have seen the northbound passenger as it was leaving Edwards Junction testified that as the freight train passed, going south, there was much steam filling up the track on the east side; that when Mr. Simmons started to go around the caboose the witness could not see him after-wards on account of the steam. “Q. As it, [106,] went across the avenue, did you see Mr. Simmons’ body on the pilot of the engine? A. I did n’t see whether it was him or not, I could n’t say whether it was him or not, until after it done got by. Q. What prevented you from seeing plainer what it was that fell off of the pilot of that engine? A. Smoke and gas and steam from that engine.” This witness testified that when it was suggested to put the hand car on the track Mr. Simmons stated, “Six is on time. It may not be here for an hour yet.” Edwards Junction is about two and one-half miles south of the crossing in question.
The jury found for the plaintiff, answering that they did not know how far the passenger train was away
“10. If you find for plaintiff, please state in what respects, if any, defendant was negligent on the occasion complained of, and through what employees, if any, defendant was thus negligent. A. By high rate of speed and crew on train No. 106.”
It will be observed, therefore, that while the petition alleged that the negligence consisted of the dangerous rate of speed and failure to blow the whistle and ring the bell the'only negligence found by the jury was the high rate of speed, which was shown to have been about forty-five miles an hour. While they did not find (No. 8) that the engine bell was ringing just prior to and at the time of the collision, they did not seem to regard this as negligence, and as will be seen later, crossing signals are not required for employees working on the track, hence the recent decision in Springer v. Railroad Co., ante, p. 408, does not apply as to the findings, and speed remains the only -element of negligence found:
It is contended by the defendant that no negligence was shown on its part. It is argued that the deceased, knowing as he did that No. 106 was due and having given this as a reason for leaving the hand car off the track, knew that the northbound passenger was likely to be along at any time, and that the defendant OAyed him no duty of giving warning of the approach of its-train to the crossing, and that so far as the plaintiff was
Railroads must operate their passenger trains and transport their passengers without impeding their progress or imperiling their safety by the necessity of making it a condition precedent to see if its section men, employed for the purpose of keeping the track safe while trains are running over it, are themselves looking out for their approach. Of course when those in charge of the engine discover a section hand in a place of danger from which it becomes apparent that he will not or can not protect himself they must use due care to avoid injuring him, but ordinarily a greater
“While speed of itself may not as a matter of cold law be negligence, yet it certainly was negligence under the circumstances in this case, and the findings of the jury that such was negligence is conclusive as it was a-matter for the jury to determine and having so found and the verdict having been approved by the lower court, the appellee thinks it is not within the province of this honorable court to disturb that finding and verdict.”
As to the warnings for the crossing the jury did not, •except as to ringing the bell, find in favor of the plaintiff, and, besides, such warnings were required for the benefit of those about to pass- over the crossing and not for the defendant’s own employees who were waiting there for an opportunity to resume work. (St. L. & S. F. Rly. Co. v. Payne, 29 Kan. 166; Mo. Pac. Rly. Co. v. Pierce, 33 Kan. 61, 5 Pac. 378; Clark v. Mo. Pac. Rly. Co., 35 Kan. 350, 11 Pac. 134; Marklinger v. Railroad Co., ante, p. 69, 147 Pac. 1132.)
A high rate of speed is not necessarily negligence, and it has been held that in the country where there is no statutory or municipal regulation “there is no limit upon the speed at which trains may be run, except that <of a careful regard for the safety of trains and passengers.” (A. T. & S. F. Rld. Co. v. Hague, 54 Kan. 284, 294, 38 Pac. 257.) That case was one involving ah injury at a crossing suffered by one who had no connection or employment with the road. In Railway Co. v. Judah, 65 Kan. 474, 70 Pac. 346, it was held that “In an open country where the view of a traveler on the highway is unobstructed, a railway company is not chargeable with- negligence in running its passenger trains over a road crossing at a speed of forty to fifty miles per hour.” (Syl. ¶ 2.) There, too, the jury in answer to a question what constituted negligence said :
“Excessive rate of speed over a crossing which had an unusual amount of travel over same, and failing to ■provide proper and reasonable precaution.” (p. 476.)
“While there was considerable travel over this crossing, yet it was not in the corporate limits of a city but in the country. It has been held by this court that in such cases speed can not be made an element of danger.” (p. 477.)
In Railway Co. v. Schriver, 80 Kan. 540, 130 Pac. 994, it was ruled that a traveler at an ordinary country crossing who sees an approaching passenger train “must assume that such train may be running at any rate of speed which the business or necessities of the company require, and act accordingly.” (Syl. ¶ 2.) In the opinion it was said:
“It is now generally understood that an unusually high rate of speed is not of itself improper or negligent. In the open country, where no peculiar conditions exist which make it dangerous, and speed is not limited by statute, trains may be operated at any speed which the existing exigencies of public travel seem to require.” (p. 543.)
(See, also, Adams v. Railway Co., 93 Kan. 475, 479, 144 Pac. 999.)
It follows naturally and logically that a railroad in respect to the speed of its trains can hardly owe a higher duty to a section man than to a stranger about to cross the track, and if such stranger must expect such speed as the exigencies of the traffic seem to require by so much 'the more must the trackman himself expect it. Practically, if it were incumbent upon the engineer to modify the speed of a train whenever passing through fog or steam in order to avoid collision with the section men the service demanded and deserved by the public could no longer be assured. Trackmen are employed for the very object of enabling the road to furnish such service and can not require the employer to impair its efficency by acting as watchman for them..
“W. was employed as a trackman; he was proceeding on a hand car to his work of repairing the track; there was a dense fog; the noise of the hand car was such that he could not hear an approaching train; he knew that he was not on the time of any regular or scheduled train, but that extra trains were likely to be lun at any time.” (p. 19.)
It was held that he took upon himself all the risks of the service he was engaged in. The same result was reached in Ives v. Wis. Cent. R. Co., 128 Wis. 357, 107 N. W. 452, although the train was run at an unlawful speed within the limits of the city and the section man was proceeding along the track under the orders of the foreman. In Morris v. Boston & Maine Railroad, 184 Mass. 368, 68 N. E. 680, in holding the railroad company not liable to a section hand who was run into by a wild engine pushing a snow plow, it was said :
“By the nature of his employment a section hand on a steam railroad must look out for passing trains, and such is the settled law of the Commonwealth. (Citing authorities.) The rule of law is the same elsewhere. (Aerkfetz v. Humphreys, 145 U. S. 418; Pennsylvania Railroad v. Wachter, 60 Md. 395; Carlson v. Cincinnati, Saginaw & Mackinaw Railroad, 120 Mich. 481, 79 N. W. 688.)” (p. 371.)
In Riccio v. New York, N. H. & H. Railroad, 189 Mass. 358, 75 N. E. 704, the deceased was shoveling snow in a railroad yard where he knew that trains and engines were frequently passing and that he was expected to look out for himself, and was struck by an engine. It was held that the company was not guilty of actionable negligence though, the engineer failed to sound the whistle; or ring the bell. In
“If the law exacts of a traveler upon a highway the duty of looking and listening, a fortiori it demands of an employee, familiar with the usages and dangers of a switch yard, that he look before he steps upon a track upon which his daily experience teaches him a train, or an engine, may pass at any moment.” (p. 359.)
The majority of the court holding as already indicated, it is not necessary to consider various other points presented, including assumption of risk. No failure of duty and therefore no negligence on the part of the defendant being shown no recovery can be had, and the judgment is reversed with directions to enter judgment for the defendant.
Dissenting Opinion
(dissenting) : Laying aside the question of assumed risk and considering the matter of the defendant’s negligence only,- it would seem that the whistle could have been sounded (Hingeman v, Rail