103 Kan. 220 | Kan. | 1918
The opinion of the court was delivered by
A passenger train of the defendants struck and killed the two-year-old son of plaintiffs, and they brought this action to recover damages for his death. From a judgment in their favor, the defendants appeal.
The place where the accident occurred is in a neighborhood of several villages or country settlements where the track of the railroad runs north and south. The child wandered from his home and upon the railroad’s private right of way, which was near by. He was struck when he was at a point about 150 feet south of a much used public highway. The track, for a distance of about a half mile south of this crossing, is practically straight. The negligence charged in the petition was that those in charge of the locomotive failed to exercise reasonable care to discover the perilous position of the child and were operating the train toward the crossing mentioned at a reckless rate of speed, to wit, 45 miles an hour.
Plaintiffs introduced considerable evidence showing the population of the neighborhood and to the effect that a great number of people made daily use of the crossing mentioned, including children returning from school upon that road, especially about four-thirty o’clock. A witness testified that about that time of day he was crossing the track on the highway and saw the train approaching from the south at a rate of about 45 miles an hour; that- he also saw the child upon the track about 90 yards south of the crossing; and that he waved at the train and tried to' flag it, but that he did not notice any slackening of its speed up to the time it struck the child. There was also testimony that the track was clear and the view un
It appeared from the defendants’ evidence that as the train passed the whistling post, about a quarter of a mile south of the crossing, the usual two long and two short blasts of the whistle were sounded and immediately thereafter the engineer and fireman, both of whom were at their proper places of duty, each at about the same instant, discovered for the first time the child’s presence on the track ahead of them at a distance estimated by them to be about 200 feet. The emergency brake was set immediately and the steam was shut off, but it was then impossible to stop the train before striking the child. It appeared that the child was wearing a light-colored apron which was about the color of the gravel of the roadbed.
A peremptory instruction was asked by defendants and refused, by the court, and the case was submitted to the jury, who returned special findings to the effect that the men in charge of the engine failed to keep a careful lookout which would have enabled them to see the child in time to stop before striking him, and that they were running at a reckless rate of speed at a point where it was to be expected that children would be on the track — at the place where the child was struck. They further found that the engineer applied the brakes and shut off the steam as soon as the child was discovered, which was then about 120 feet from the engine, but it was impossible to stop the train at the rate it was running in time to avoid the accident; and that the place where the accident occurred was about 150 feet south of the highway crossing.
The question of the defendants’ negligence was raised by objections to the petition, to the submission of the case to the jury, and to the rendition of judgment on the special findings; and the contention on this appeal is that no duty owed by them to the child was violated, and that no liability against them was either alleged or established. What was the duty of the defendants towards the child ? He was on the track and right of
“He was in a place where the company had the exclusive use of the tracks, and where; there was no reason to anticipate that intruders or trespassers would be concealed. Under such circumstances, there was no duty on the part of the company to foresee his wrongful presence, nor did any duty arise in his favor until his presence was discovered. As a general rule, before the company can be made liable for injury to trespassers, it must appear that the proximate cause of the injury was the failure of the company to use reasonable care to avoid injury to them, upon becoming aware of the peril to which they were exposed. . . . The only duty which the company owed to him was not to recklessly or wantonly run over him after they discovered him in a place of danger.” (p. 558.)
Other cases supporting this view are C. B. U. P. Rld. Co. v. Henigh, Adm’r, 23 Kan. 347; Mason v. Mo. Pac. Rly. Co., 27 Kan. 83; A. T. & S. F. Rld. Co. v. Plaskett, 47 Kan. 107, 26 Pac. 401; Railway Co. v. Prewitt, 59 Kan. 734, 54 Pac. 1067; Burgess v. Railway Co., 83 Kan. 497, 112 Pac. 103; Hayden v. Railway Co., 87 Kan. 438, 124 Pac. 165.
Plaintiffs contend that the Prewitt case tends to uphold a recovery. There a child two and a half years old wandered from its home and lay down on the railroad track, and was probably asleep when ,it was killed by a train. It was at. a place not frequented by children or other persons, and, while those in charge of the train saw an object on the track a moment before they realized it was a child, the discovery was not made in "time to avoid running over it. Everything the trainmen could do to save the child after its peril was seen was -done by them, and this was held to be the extent of their duty towards the child. Special attention is called tq the statement
One ground o-f negligence found by the jury was the high
The judgment of the district court is therefore reversed, and the cause is remanded with -directions to enter judgment in favor of the defendants.