25 Kan. 738 | Kan. | 1881
The opinion of the court was delivered by
This was an action for damages, brought by James Smith, an infant two years and twenty days old, by his next friend, William Smith, against the Atchison, Topeka & Santa Eé railroad company. The action was tried before the court and a jury; and after the plaintiff had introduced his evidence and rested, the defendant demurred to the evidence, upon the ground that it did not prove any cause of
The plaintiff claims that the evidence introduced in the court below shows that the facts in this case are substantially as follows: On September 26, 1878, the plaintiff was badly hurt, being crippled for life, by being run over by a flat car on a side switch of the Atchison, Topeka & Santa Fé railroad, near Osage City, Kansas; he was only two years and twenty days old. The defendant was the owner of, and operated the switch, using it daily. The switch was 300 feet long, and built with a heavy grade, down which cars would run with great force when the brakes were loosened. The employés of the Carbon coal and mining company used this switch almost constantly in loading coal. At the time the plaintiff was hurt, and just prior to the actual injury, the em-ployés of the Carbon coal and mining company loaded a flat car at its coal shaft and chute,- on this side track, and took off the brake, and the car ran down the grade, no one being on it, and it ran over the plaintiff. He lived with his parents, about one hundred feet from the switch, and had not been gone from the house more than three minutes when he was hurt. The switch was in a populous neighborhood, beyond the limits of the city, and the track not fenced. The Carbon coal and mining company had been using the switch for near two years. It had always allowed the cars to run down the grade, when loaded, without the brake being set on any of them. The track was clear from the shaft to the place where.the grade changed, and where the cars would stop of their own accord. The employés of the company had at different times driven children off the track. At the time when the car which ran over the plaintiff was started, one Chris. Black started it, and did not look to see whether any one was in the way or not, although he could have seen any one on the track if he had looked. Black was an employé
The defendant would seem to admit the foregoing facts, except as follows:
Defendant claims that a flat car stood on the switch track, immediately in front of the plaintiff’^ home, and that the plaintiff1, when he strayed away from his home, went under this flat car, and that when Black loosened the car at the coal shaft so that it rau down the grade of the switch track, it struck the car under which the plaintiff was situated, and set it in motion, and that it was this last-mentioned car which ran over the plaintiff and injured him. The defendant further claims that at the time of the injury none of the employés of the defendant or of the Carbon coal and mining company could from his position have seen that the plaintiff was on the track or in any danger, even if he had looked.
The following are also facts, as shown by the evidence:
1st. No one knew that the plaintiff* was on the track of the railroad company at the time he was injured.
2d. The track and the land over which it was constructed belonged to the railroad company, and therefore the plaintiff* at the time he was on the track was technically a trespasser.
3d. There was no fence or anything else between plaintiff’s home and the railroad track to prevent the plaintiff from going upon the track, which was about one hundred feet from the plaintiff’s home.
4th. Plaintiff was not injured by any direct or immediate act of any servant or employé of the railroad company, but was injured through the acts of the employés of the Carbon coal and mining company.
5th. And it is clear that the employés of the Carbon coal and mining company did not look before they loosened the car that caused the injury, to see that the track was clear so that it would not injure any person, but whether they could have seen the plaintiff or not, if they had looked, is disputed; but as there was some evidence introduced tending to show that they might have seen the plaintiff if they had looked,
These we think are substantiálly all the facts in the case; and upon these facts, is the railroad company liable? The defendant claims that it is not liable: First, because the injury to the plaintiff was not produced by any negligence of either the defendant or of the Carbon coal and mining company; second, because, even if the Carbon coal and mining company was negligent, still, that the defendant is not liable therefor; and third, because, even if the plaintiff was injured through the negligence of either the defendant or of the Carbon coal and mining company, still, that he cannot recover, on account of the contributory negligence of his parents and custodians.
The defendant seems to admit that the plaintiff himself was too young to be charged with contributory negligence; and the question whether the parents and custodians of the plaintiff were guilty of contributory negligence may also be eliminated from the case; for, as before stated, the question was not submitted to the jury, but was decided by the court, and therefore, unless we can say as a matter of law, that they were guilty of negligence, we cannot say that the court below decided the case correctly as to this question; that is, unless we can say that the failure on the part of the parents of the plaintiff to keep him away from the railroad track was per se culpable negligence, contributing to the injury, we cannot say that the court below committed no error in taking the case from the jury, because of any supposed negligence of the parents of the plaintiff in permitting him unconsciously to enter upon the railroad track. We cannot say that the parents were thus guilty of negligence. Indeed, if we were examining the case as a juror must examine it, and as a question of .fact instead of as a question of law, as we are now consider
This leaves two questions still to be considered: First, were the employés of the Carbon coal and mining company negligent? Aud second, is the railroad company liable for its negligence?
We think, as the question is presented to us, we must hold that the employés of the Carbon -coal and mining company were negligent. As the case is presented to us, we must consider everything as proved which the evidence of the plaintiff tended to prove. We must not only consider that the em-ployés of the Carbon coal and mining company did not look to see that the track was clear before they loosened the car that did the injury, but also that they could have seen the plaintiff on the track if they had looked; and' the fact of not looking, under such circumstances — or, in other words, the failure to look — we must hold was negligence. It must be presumed conclusively that the Carbon coal and mining company, as well as the railroad company, was acquainted with the vicinity where the injury occurred, and with all its surroundings. It must be conclusively presumed that both com-
If the facts of this case were as they are claimed to be by the defendant, then the following authorities would probably apply, and the defendant would probably not be liable: Ostertag v. The Pacific Rld. Co., 64 Mo. 421; P. & R. Rld. Co. v. Hummell, 44 Pa. St. 375.
The next question is, whether the railroad company is responsible under the circumstances of this case for the negligence of the employés of the Carbon coal and mining com
The judgment of the court below will be reversed, and the cause remanded for a new trial.