57 Kan. 168 | Kan. | 1896
The opinion of the court was delivered by
Clarence E. Young, a minor about three years old, had his hand cut off by one of the trains of the Union Pacific Railway Company, in Kansas City, on November 4, 1888. He brought an action by his next friend, alleging that near the track were several houses occupied by families with children ; that the track was not often used by the company, was very attractive and enticing to children, and, therefore, it was necessary for the company in moving cars to keep a careful lookout and guard over the track to prevent injury to children who were on or near to the track. It was further alleged that, while the plaintiff was playing upon the track near the end of the train of cars, it was moved backward without any warning to him, or any precaution to prevent accidents to children upon the track ; and that by reason of negligence, in failing to keep a lookout or proper guard, the injury occurred. The trial resulted in a verdict against the company awarding damages in the sum of $5,000, and upon motion for a new trial it was insisted that the verdict was not sustained by sufficient evidence; and that is the principal contention in this review.
It appears that the train was upon a switch-track on which freight-cars destined for Kansas City were
There is just cause to complain of some of the instructions that were given. There is confusion and inconsistency in the statement of the rule as to the care required by the railroad company in moving the train from the place where it stood. The jury were told that they might take into consideration the nature of the lookout kept or examination made by the employees of the train before it was moved, while another portion made the moving of the train, without an examination of the track or cars, culpable negligence. Under the testimony, the court was not warranted in declaring it to be a duty to make an examination of the cars before moving the train to ascertain whether there might be persons under the cars who would be injured by the movement.
The jury were also directed to determine from the