29 Kan. 166 | Kan. | 1883
Lead Opinion
The opinion of the court wa,s delivered by
On or about the 20th day of February, . 1880, Philip Payne drove his team of horses in the afternoon to McGahey’s mill, situated outside of a city or village, on
In the action brought to recover damages for the injuries mentioned, upon the trial the jury found 'specially that the . railway company neglected to sound the whistle at the distance
“A steam whistle shall be attached to each locomotive engine, and be sounded three times at least eighty rods from the place where the railroad shall cross any public road or street, except in cities and villages, under a penalty of not more than twenty dollars for every neglect of the provisions of this section, to be paid by the corporation owning the railway, on the suit of the county attorney, one half thereof to go to the informer, and the other half to the county for the support of common schools; and the corporation shall also be liable for all damages which shall be sustained by any person by reason of such neglect: Provided, however, That such penalty shall be sued for within one month from the time the cause of action accrues, and not thereafter: And provided further, That but one penalty shall be recovered in any one action.”
Payne was in the mill and his team was hitched when the whistle ought in the first instance to have been sounded; he was not then traveling on the highway at or near the crossing, nor was his team at large near the crossing. His only purpose in wanting the whistle sounded was to give him notice of the approaching train so that he might leave the mill and hold or look after his team. As thus situated, the railroad company owed him no duty under the statute to sound the whistle. (1 Thompson on Neg., p. 452; Harty v. Rld. Co., 42 N. Y. 468; Elwood v. Rld. Co., 4 Hun, 808; Rld. Co. v. Spearen, 43 Pa. St. 300; O’Donnell v. Rld. Co., 6 R. I. 211 ; Holmes v. Rld. Co., 37 Ga. 593; Rld. Co. v. Houston, 95 U. S. 697.)
Of course it cannot be contended that the omission of the railway company to sound the whistle eighty rods from the crossing frightened or caused the team to run away. As the
The judgment of the district court must be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.
Concurrence Opinion
I concur in the judgment of reversal, but do so on the ground that it does not appear that Payne’s team was on the highway, at the time the train approached. For all' the record shows, it may have been hitched to- a post on private grounds, and I do not think the statute applies in any such case.