91 Kan. 496 | Kan. | 1914
The opinion of the court was delivered by
In an action against the railroad company to recover for the death of plaintiff’s husband, the court sustained a demurrer to her evidence, from which judgment she appeals.
The defendant’s main tracks run north and south through the city of Manhattan, and cross Colorado avenue, which runs east and west. Morgan, the deceased, was in the employ of a milling company, and about seven o’clock on the morning of the accident left the freight depot on the west side of the tracks and started to cross to the east side to examine a freight car on a sidetrack in the yards, to which he had been directed by the agent of defendant. A freight train was on the first track, headed north. He stopped and waited for this train to pull out. Another freight train had been standing on the track east of this, headed in the same direction, but it had been divided
'There was evidence that the freight train that had stood on the first track had left a few cinders and ashes which were sending up some smoke; and plaintiff contends that it was a question for the jury to determine whether this did not prevent the deceased from seeing that the train was moving. Of course, if the smoke obscured his vision so that he could not have seen there was a train on that track, or that it was moving, it would have been his duty to wait until he could discover the true situation by looking. (Railway Co. v. Wheeler, 80 Kan. 187, 101 Pac. 1001; Gage v. Railway Co., ante, p. 253, 137 Pac. 938.)
The judgment is affirmed.