Missouri Pacific Railway Co. v. Hackett, 54 Kan. 316

Missouri Pacific Railway Co. v. Hackett

54 Kan. 316 | Kan. | 1894

The opinion of the court was delivered by

Allen, J.:

The contention that damages cannot be recovered for injuries received by a runaway team of horses coming in collision with an unlawful obstruction in the street has some support in the authorities cited in the brief for the plaintiff in error. We have recently considered this subject in the case of Street Rly. Co. v. Stone, ante, p. 83, and have followed what we deem to be the weight both of authority and of reason, and hold that the right to recover is not precluded by the fact that the team was frightened and beyond the control of any person. The decision in that case disposes of the question mainly argued in this. It remains only to consider whether the failure of the railroad company to erect a gate, as required by the ordinance of the city of Ottawa, was the proximate cause of the injury to the plaintiff’s team and wagon. It is claimed that the plaintiff was negligent in leaving his team hitched to the sidewalk on Main street, and within about 100 feet from the railroad track, for four hours.

*320The agreed statement of facts shows that the team was not frightened by the passing train. In the absence of any other facts, we cannot hold that there is an affirmative showing of negligence on the part of the plaintiff. It appears that the horses were frightened by reason of another team being backed against them. This might have been negligently done by the person in charge of the other team. It might also have happened without any negligence on his part. We cannot assume negligence. It must be shown. We then have the case of a frightened team of horses, loose on Main street, in charge of no one. The defendant’s train of cars was passing along the railroad track across Main street. The ordinance of the city required that, during the passage of trains, access to the track should be closed by a good and sufficient gate, not more than 30 feet from the track; that the gate should be of such dimensions and so constructed as to fence the railroad across the street. The railroad company had a right to operate its trains, but it rested under the duty of having a closed gate to prevent access to the track when it would be dangerous for teams to pass. It is contended that the team would have been injured even though the defendant had complied with the ordinance. We do not think this can be assumed. The ordinance requires gates for the purpose of a substantial obstruction to the passage of persons, teams, etc., not for the mere purpose of giving warning. If a flagman had been required merely to warn persons about to cross the track of danger, there might be great force in the contention that a failure to place one there could not have occasioned loss to the plaintiff.

It is true that, so far as notice and warning are concerned, the presence of a train of freight cars is more easily seen than a gate would have been, but we cannot presume that a collision with a substantial gate placed across the street would have utterly ruined the plaintiff’s horses as did that with the moving cars, nor can we assume that the horses would have broken through a substantial gate and struck the cars with such force as to have still sustained the injuries they did in *321fact receive. The common observation of mankind shows that a collision by a runaway team of horses with a gate will ordinarily result in less injury than the plaintiff’s team sustained in this instance, and less than would ordinarily be sustained by running headlong against a moving freight train. It was the duty of the railroad company to interpose a gate between its train of cars and the frightened team. This it failed to do. It violated a positive requirement of law made for the protection of the lives and property of the people using the street. In .this the company was culpably negligent. The injury to the plaintiff’s property would not have happened in the manner it did happen if the defendant company had obeyed the law. It is probable that the team would have sustained some injury if there had been a gate across the street, but we are not required to speculate as to how much that injury would have been. We are relieved of all ■difficulty as to the measure of damages in this case by the agreement that the plaintiff is entitled to recover $260, if anything. The judgment of the district court is affirmed.

All the Justices concurring.