*1 giving there- 1 and the No. instruction pointed out error For so accordingly It is be reversed. must this case judgment of, the for a new be remanded cause and that be reversed it ordered (cid:127) trial. All concur. Administrator, etc., Respondent, Atchison,

Lee E. Weeks, Railway Appellant. Topeka Fe Company, and Santa (2d)W. 374. 109 S. City Appeals. Court of October 1937. *2 Gresham, and Walter Gresham for re- F. M. Kennard J.

Kennard spondent. George Mersereau, Monteith, John N. Crane, J. F.

Gyrus James appellant. for Bean Wood and Walsh Floyd wrongful for of one

SPERRY, C. This isan action death brought of the deceased. by the administrator of the estate Snorgrass, in the sum of judgment in favor of a and There was verdict appealed. $1000. has Defendant Snorgrass, killed about deceased, Floyd show that facts City, Kansas, one

8:45 P. M. of December being operated of its track. engines, westerly over one defendant’s locomotive, just the Union had come from engine, passenger a going to defendant’s round- City, Missouri, and was Station in Kansas Argentine, Kansas, to be City, known part of Kansas house running of tracks west number east Defendant a stored. four main line struck. There are point at the where deceased four, beginning at the south one at numbered tracks pas- One is the eastbound Track Number going the north. toward track, passenger westbound senger track Number Two track, freight track, and track num- eastbound Three track Number these tracks are freight track. North of Four is the ber westbound or classification tracks tracks, transfer switch referred several made to up and transfers made and broken freight trains are lay tracks line and switch connecting The main lines. and from to the foot of bluff Avenue, Metropolitan between an area north, about occupy south, on the Kaw River and the 175 feet in .width. Over passing- constantly tracks trains were ... back and forth two more minutes apart.

(cid:127)Just west the abandoned Fifth Bridge, Street which is about' point feet west -of collision, of the tracks, south of the is: a tower about height, feet in light” referred to as “flood tower/ having strong number of lights throwing' with thereon reflectors lights lighted toward the east! These the track for several thous- evidently and feet- gave -very bright east light where deceased- killed, although plaintiff’s one witnesses testified one that- could read a newspaper there. brother, Deceased and his John Snorgrass, had fishing lines in the Kaw near River where deceased were going was killed and to these lines They, high time. lived bluff to south going tracks. fishing toward the lines a path followed *3 which led down the on they hillside to-the When reached tracks. the they stepped bottom of the hill over the first main line track and paused track long between that and track Number Two on of a account slowly train passing toward the east on track Number Three. They were for waiting pass this train to by, the rear the be- same ing only cars-away. or five six Deceased stood at about the end the ties of track Two, Number which was about 18 inches south the away rail. His brother stood further from the track and about four or five feet of him. east Both them to look in both continued approach possible Two, directions for the Number trains Snorgrass none. However, and saw when John last looked toward the large running saw, east about four feet from locomotive attached, “light,” coming cars or without -from at a any the east ' speed of between- miles per rate of hour. It was without signal its’approach. gave John'Snorgrass no It-missed deceased, resulting but in his death. As the struck locomotive engineer or fireman the shouted “look out.” either Of contested issues at the was whether One deceased was .trial trespasser premises. on defendant’s Defendant admits that there- path, of a tendihg show the existence well-defined was evidence to leading up opposite to the' comihg hill and the track- down the killed, path but insists that there was: across deceased was people down tracks; coming that that that the evidence shows the path tracks, .regard pass paths over the without to and others would present. Photographs were walkways because there none or path up- evidence, insists, that show were introduced the hill extended over -across the descended on which deceased photographs these not insists that do Defendant railroad tracks. n path. show such a looking photographs, to us, determine difficult for It is question tracks. There is no across the path extended whether the photographs path show a coming that well-worn dirt but down weeds on both sides photo- hill with brush and of the The same. rail path that the to the south of the most graphs further show leads might southerly The tracks and it track. were laid cinders path photograph across -.cin- well be that a disclose would any rate, right ders, path up one leads even if were there. At oral, testimony, on behalf of the the railroad and there was past a all of rails of the tracks and switch that it led across down shanty may photographs to the river. of what the next Regardless^ liberty jury show, show fail believe testi- the.oral mony path tracks. that the extended across the that, theory,at trial all tracks con- It was defendant’s (cid:127) path yard; crossing there was .'no a switch that well-defined stituted many, paths coming were down the hillside but that there same spread tracks; people using them would out -and toward fit, any any definite saw without across tracks at there, paths in crossing. testimony There were other that, only- vicinity: plaintiff’s testimony How'ever,. shows west abandoned Fifth paths, one of -which was located three bridge west of where Bridge. Street This was about feet vicinity. was between path in the was killed and not second the. path had been bridge killed but this washed and where deceased was being, out.and was used.- nighttime during both-the-daytime-and testimony-shows coming hill path

large people used the number down crossing using his brother when which deceased and the tracks fishermen, boat former own- people was killed. These consisted *4 Some of them ers, pleasure seekers various kinds. swimmers and people mak- employees of the defendant.- There were-25 to were crossing ing -fishing public a There was no the -in the river business. vicinity. place anywhere in tracks over these tracks were, many years, prior to people for question in traversed these tracks question. and his brother crossed casualty in Deceased fishing day with lines. a in connection their a dozen times sometimes bluff, years.: According plain- They on the. for about had lived two warning sign other present and kind there was no no tiff’s evidence people tracks. warning cross the given jury that de- from which could find There evidence ample path-cross- knew of of the agents and fendant’s servants use fact, question. in In defendant introduced ing point the tracks a path without restriction. It in its “exhibit C”- showed evidence road,” across de- thereon, point on the “old leading from a marked One; track Number right way, the south rail of fendant’s deceased was the exhibit showed marked on of accident as One track Number north rail struck at a between Two, in rail of Number what would have been this the south Therefore, path projected across these tracks. de had same fendant, evidence, precluded denying from own is from its almost path controversy. Metropolitan the existence of the in [Scotten (2d) Co., 60, l. 73, a dissenting opinion Life Ins. S. W. which was Supreme sustained Court.] “guessed”'

Deceased’s brother testified for dis that he tance between the north rail of track One rail Number and the south Two, space track Number deceased and his brother standing occurred, when the casualty about one- seven and feet; very it; half that he. didn’t measure and that he didn’t good judgment as to distances down for he did not work there. practically probative This evidence is of no value for it was point. substantial evidence Ry. Co., 71 on the v. Wabash [Carpenter (2d) S. 1071, engineer W. l. c. A civil for de testified feet; fendant between distance these tracks was overhang engine of the that struck deceased was three feet inch; a eighteen fraction of an of the ends ties extended beyond rail; engine inches question outside that the n regular passenger engine a type; road overhang- 'and that the eighteen boxcar is about inches. of the' view absence of evidence points pósitive- on-behalf of and dncontra dicted evidence to by defendant, the above effect offered and of the plaintiff hypothesizes argument fact that his in this court assumption the true, also, facts stated in paragraph we, this' are to be assume same true. n urges contributory negli Defendant guilty that deceased was of" gence law, taking as a matter of to the track as stand so "close plaintiff answers, to be struck train. To this contention first, agents guilty" that defendant’s of “wilful and wanton negligence”' Kansas, and, true, under the laws of con being n tributory negligence is no negligence defense. Contributory is negligence.’’’ defense if defendant is of “wilful wanton Pacific Co. v. Whipple, c. 541, seq.] et [Kansas “ordinary” negligence There is substantial difference between and wanton”' says and “wilful or misconduct. Plaintiff so, this is and the courts Kansas have so held. really

“Although what reckless alnd wanton misconduct negligence, spoken gross expression every- sometimes recognized unfortunate, as inaccurate and because it seems to *5 degree, whereas, imply only of difference the whole that doctrine injury contributory negligence is no defense where the is the result theory and wantonness of differ- of recklessness based phrase reason kind. For the same ence in ‘reekless and wanton tendency.”' misleading negligence’ Atchison, & Topeka has [The 434 183, l. Ry. Baker, v. Santa Fe Co. c. case 189.] Admr. Kan. theory tried and submitted below on defendant was

w.as that the. negligence term is as.the ordinarily understood. when, urges that, on, Plaintiff at the time the demurrer was - yet no had go should now back and we instructions offered that, theory adopted in the trial action court and sustain court’s because, urged, plaintiff proved it is and pleaded “wilful had wanton” negligence, overruling and the action of the trial-court light demurrer it should be considered in as situation. stood before submission. Vitri v. Louis That is the law. St. [Bright fied & Co., 641; Brick Mo. Wells, Fire S. W. Schroeder v. agree However, plaintiff we cannot made out a case that “wilful and negligence, misconduct, wanton” as is sometimes it casualty called. and, yards night, at. while occurred the' by floodlights, they day;’’ covered light were not as deceased “as crossing; oh any struck main line from “public,”' far casualty was on a it at curve where that deceased unlikely any glare engine headlight, time within there been one; engine freight that struck train this him was at point, freight north; which train was on next track crew engine watching defendant’s and did not at see deceased any time, and, although plaintiff offered evidence that the crew deceased, engine shouted passed, yet as the there no evidence that saw or have seen in time to have could avoided occurrence, hitting him; plaintiff’s only witness to actual positively refused to the bell testify ringing or that was..not light only, engine, but, any did see any engine or hear He bell. did not see the until it was within feet if light, any, .five which time the would angle his an pointing been over head and off-at -on account of curve; passing might and the train have drowned out ringing. making it noise the bell if had been these observa weigh attempting are tions the evidence but pointing we of;“wilful seem convict defendant that it does not out and wanton-” under, .the Kansas defendant, decisions cited which we (Sec. 806, 1929), R. S. Mo. are to observe case bound this Atchison, Topeka fall within facts of The & does not Santa Fe Ry. Baker, 187; Admr., Co. v. Pacific Whipple, 39 Kan. and other cases Co. examined us holding Our plaintiff. relied on this connection is further fact but submitted supported three instructions, court, given by being No. thereof all which were .the follows: jury that the word ‘negligence’, “The court instructs the used instructions, failure means the exercise ordinary care, .ordinarily. an care is that care ordinary careful and *6 circum- or similar same would exercise under the prudent person stances.” n over was thought, after the demurrer evidently below Plaintiff showing of “wilful and proper ruled, that had been wanton’.’ there he reaches theory after brings and forward that negligence, of deceased’s consequences only to avoid the court, this and then plain any. contributory negligence, if adhere to the theory We facts proved was not sufficient adopted below, tiff In so negligence.” justify of “wilful wanton an instruction and “wilful abandoned the holding plaintiff, law, do not hold that we plaintiff, merely theory, but observe that wanton” and below, at time did not apparently, from his course of conduct plain expressed herein us. Had view from that by take different neg based “wilful and wanton” tiff submitted an instruction said duty of the trial court to refuse ligence, it would been the evidence, Therefore, we hold that to the instruction. demurrer phase only, if in connection with this the case should considered by trial court. The rule laid down have been sustained 565, Metropolitan Ry. Co., 555, 153 Mo. App. Gordon v. Street l. c. applicable here. brings phase This final case: us Was deceased contributory negligence? so,’the If This case must be reversed. Kansas, laws v. The must under the Riley be determined . 596 City Railroad, Southern Mo. considering all the demurrer to -the we must consider evidence record, by plaintiff both that offered evidence that offered and true; draw which is favorable to we defendant, must plaintiff; all reasonable therefrom that are favorable to inferences disregard and all evidence offered which is we must defendant unfavorable, disregard we must also all such inferences based 1929; Cullor, (2d) thereon. R. S. Mo. Reed v. W. S. [Sec. 296; Wells, 330 Mo. l. c. Schroeder .acquainted well The evidence of shows that deceased was yards killed, .day he where both with the tracks in, and, night. upon, daily, He and over them almost single day night. instances, several His during in some times period years. knowledge of about chose thereof covered two He main line tracks of defendant he go, night, across the at tracks, tracks two en- eastbound that, knew two westbound periods on each or all at passing of a few gines and trains going hours, going east and some west. at all some apart minutes this. The testimony deceased’s brother showed evidence Two, space in a between tracks stood One and showed that watching pass east on track Three. As one train north, facing rails out, distance between the of the track pointed heretofore him and rail of the track in front behind feet ample safely, tracks, between There was room for one to stand Knowing even time. with trains on both the same any might danger; in a that a train knowing *7 appear facing, on in the minute the track he was that the yard good daylight; knowing as that he a curve as stood on was see for where would be difficult and where it it to would be difficult him; approaching of an train to the knowing crew see that freight train him to passing noise of would make it difficult for train; approaching knowing things hear all another as he is them, sight being bound have known his sense of hearing to yet good, testified, brother deliberately as he await the his to chose standing passing of the train while “at the end about position, eighteen of him. the ties” of the track in front In such a years a man itself, from track who had lived for two inches sight yards busiest within of One of the railroad treminal in know West, was that he was struck Middle bound to liable be likely by boxcar, and much more to be an passing struck by even overhang. argues engine greater Plaintiff its that one is not with negligent standing point safety if, of his while at a be- where he struck, safe, by he will be is there reason unusual lieves he of some engine. “overhang” a passing ear or He cites two Missouri cases crossing standing regular person public was struck while where passing swung on a rear end of the car further out curvfe cases, out, in rounding swung curve. In those the rear end overhang. beyond curve, far de- usual But here rounding overhang ordinary path within even an ceased stood “overhang”' engine him Nor struck an boxcar. was overhang,” suggested by plaintiff. chief Plaintiff’s “unusual engine brother, said the witness, usual standard deceased’s parts on this other of main engine used defendant road its expected, required, and is person line. A normal adult due use and, failing so, safety, to do cannot another own hold care for his ordinary negligence. injury the doctrine of We are under for his with the humanitarian doctrine or “wil- here with the not concerned doctrine. ful and wanton”' struck urges if deceased had been reason

Plaintiff engine crosswise on the cowcatcher having been carried pole contributory charged negligence. with A be suffi- ought not to he struck in He this manner. is: He was cient answer passenger-type engine, engine. a usual Nor by struck piston, part struck he evidence that even is there The evidence shows out. was struck furthest extended may b,y part struck engine. He some part some piston shows, before the reached so far as the evidence consider- ing from the distance he the track. stood says danger

Plaintiff deceased was out for con looking because he stantly way up contributory looked each and down the track. His having, danger arrived, consisted his before the chosen inevitably where to take a stand at a struck he must be if a plaintiff’s train track. The evidence showed dangerous he stood as if was almost he had on the track stood case, here, itself. In the latter under the think circumstances we person say contributory reasonable would he was not negligence; high and the fact that ran at a rate train defendant’s lights of speed, ringing without and without bell or the sound ing plaintiff. of the whistle cannot avail of The think the case We Atchison, Topeka & Withers, Co. Santa Fe crossing. point. public directly There deceased was at a night up was dark He and cold. collar turned and was his adjacent for a train to on an

waiting pass when he was struck *8 freight car, defendant, and which car was shunted lights, guard signal. here, There, without deceased could have safety place by standing negligently stood in a of farther back but place stood at a was struck where he car. The court said: “Much evidence introduced to show men standing 4; were, upon highly probable were it seems that they though jury they not; they were found that but whether exactly upon moment, seems of small fact track or not for the they they place is that if were not between the rails in a of equal danger. necessary place It was not for them to stand in a of danger, stopped west of track have could or could safely 4.” stood between tracks

And, l. c. court further said: safety; ample stop “There was for them to in a room danger exposing so. Their obvious can others did themselves this hypothesis be of their indiffer- accounted for reckless safety.’' danger apparent ence to the which was so and to their own It be brother here said that deceased’s stood near but was may Ry, Topeka & Hoopes Atchison, struck. See also v. The Santa Fe Ry. Co., 422; Co., Kan. Zirkle Mo. Pac. Kan. 77. v. defendant, bar,

In the case as claimed conceded; the demurrer but should have been sustained contributory negligence Under law of deceased. because contributory Kansas, negli whether or not facts constitute upon by law the court. gence is a matter of to be [Kansas 38; Atchison, Topeka Railway Pointer, Co. Pacific 628; Withers, supra, Libbey v. The At- & Santa Fe Co. v. Atchison, 869; The 69 Kan. Ry. Co., Topeka & Santa Fe

chison, 60 Kan. Willey, Ry. Co. v. Fe Topeka & Santa C., concurs. Campbell, judgment is reversed. adopted C., foregoing opinion Sperry, PER CURIAM:—Tbe ¡the All concur. reversed: judgment Tbe court. opinion

as tbe F. Wilbur Estate M. Jenkins, Administrator James Company, Railway Respondent, v. Wabash Jenkins, Deceased, pellant. (2d) 204. 107 S.W. Ap 3,May Appeals. City 1937. Court