259 P. 683 | Kan. | 1927
Lead Opinion
The opinion of the court was delivered by
The action was one by a father to recover damages for the death of his son. Plaintiff prevailed and defendant appeals.
On July 18, 1924, the plaintiff’s son, Delno Stoddard, nineteen, and a friend, Fay Gray, left their homes in Missouri bound for the harvest fields in Kansas. They arrived in Kansas City, Mo., the following morning, had breakfast, took a street car to Armourdale, Kansas, and waited in the train yards for one of defendant’s westbound trains. There was a double track, the south used by eastbound trains, the north by west-bound. They boarded a west-bound Rock Island train, consisting of about thirty empty fruit express cars, from the left or south side as it traveled west, ten or twelve cars from the engine. Gray crossed over to the north. Both climbed the ladders, at the front end of the car to get on top. There-was evidence that after they reached the top and had ridden for a short distance, a man approached from the rear end of the train, waved, and ordered them off the train; that they got off because they were afraid; that the fireman on an incoming east-bound train saw the pilot of the engine strike young Stoddard; that he died without regaining consciousness; that the east-and-west tracks at the point in question were eight feet apart; and that they curved at this particular place. On the part of the defendant there was evidence
On behalf of the plaintiff it is argued that it was negligence on the part of the trainman to order the boys from the train at the place and under the circumstances because he was more familiar with the closeness of the tracks, knew there was a curve and that another train was likely to be or was approaching from the west which made it inherently dangerous for the deceased to attempt to alight. The defendant contends there was a total absence of a showing of negligence on the part of the defendant or its employees.
There was evidence that both trains at or about the time of the accident were running at a speed of about fifteen miles per hour. Fay Gray, the deceased’s traveling companion, left the train from the north side in perfect safety. The deceased. chose to leave the train on the south side and was hit and killed by an east-bound train running on the south track. There was no evidence showing the length of time he stood upon or in the vicinity of the track after alighting from the west-bound train, and no claim that the deceased met death through injuries inflicted by the train on which he had been riding, but that he met death from injuries inflicted by the east-bound train running on another track. So it is left largely to speculation and conjecture as to just how or why he was struck by the east-bound train. Granting that defendant’s brakeman ordered the deceased from the train as claimed, it can hardly be said that it was negligence so to do because of the proximity of the south track or the approach of an east-bound train thereon. The deceased and his companion, being on top of the car, were in as good position to observe the approach of another train as was the brakeman. The brakeman did not tell the deceased to get down on the left side. He did that of his own volition. We have given careful consideration to the matter and conclude that no negligence was shown. This conclusion compels a reversal of the judgment.
The judgment is reversed and the cause remanded with instructions to render judgment for the defendant.
Dissenting Opinion
(dissenting): I cannot concur in the conclusion reached by the majority of the court. Under all the circumstances,
