80 Kan. 583 | Kan. | 1909
Lead Opinion
O. L. Thisler recovered a judgment against the Union Pacific Railroad Company on account, of four colts having been (killed at night by one of its. passenger-trains, and the company prosecutes error. The animals were found to have gone upon the track under such circumstances that the defendant was relieved of liability unless its employees saw them in a place of danger soon enough to have prevented the accident by the exercise of ordinary diligence. The jury, however, in answer to a special interrogatory, said that the engineer saw them in time so that by the exercise of reasonable care he could have stopped the train before striking them, and the only question that need be considered is whether there was any evidence to support this finding.
The engineer testified that when the collision occurred he was looking straight ahead up the track, and had been doing so for some time, but that he did not see the animals at all because of a dense fog, and only knew that he had struck them by feeling a hard jar? that on a clear night the headlight would light the track for a distance of “from four to six telegraph poles,” or 660 to 990 feet, and that the train was running forty-five miles an hour. On the other hand the plaintiff introduced evidence that there was no fog, that the track was straight for three-quarters of a mile each way from the place of the accident, that no signal was given as this point was approached, that the speed of the train was not slackened, and that the headlight enabled one to see in advance of the engine with plainness for a distance of 1200 to 1500 feet — that it lit up the'track for fully half a mile. Under these circumstances the jury might have been led to believe from the evidence that when the engine reached a point 1200 to 1500 feet from the spot where the colts were killed the engineer was looking ahead, that the track was visible
The judgment is affirmed.
Dissenting Opinion
(dissenting) : There was no affirmative testimony that the engineer saw the colts in time to have avoided the injury. The jury came to the rescue of the plaintiff and obligingly found as a fact that he did see them in time to have stopped the train. There was no testimony as to what position the colts were in or where they were immediately before they were struck. No fact was proved from which a jury could rightfully infer that the animals were in a position of danger long enough for those in charge of the train to have seen them and prevented the injury. Thirty minutes had elapsed from the time the colts left the enclosure and went upon the' right of way before the train passed. How much of this time they occupied in going the one-half mile distance is conjecture. Of course, it took them “some time” to make a few tracks and deposit some manure on the right of way, but how long a time can only be surmised. The jury assumed that after the colts had done these things they continued to stay on the track until the train came, and therefore the engineer must have seen .them; but this likewise is only conjecture. The train was running fifty miles an hour; it was twenty-five miles away when the colts first, got on the right of way, and may have been ten miles away when the tracks were made and the manüre deposited. The colts may afterward have gone to the side of the