84 Kan. 213 | Kan. | 1911
Lead Opinion
The opinion of the court was delivered by
The plaintiff contends that he was at the post of duty, the only place where he could perform it, giving close attention to the signals of his conductor, which it was necessary to do to prevent accidents to his train; that while so engaged, absorbed with duty and wholly unaware of danger, the passenger train, running quietly, without giving signals or warning, ran upon and injured him; and that this injury could have been prevented if the conductor of the passenger train had exercised ordinary care. On the other hand, the defendant contends that no negligence on its part is shown, but that the plaintiff, who knew that the passenger train would be backed in on the main track about that time, was bound to look out for it, whether the conductor gave warning signals or not; that the plaintiff’s duty did not require him to be on the track, and that there was nothing in the circumstances to lull him into a sense of security; that the
A more difficult question is whether the testimony clearly proves that the plaintiff is barred from recovery by his conduct in going upon the track and remaining upon it until injured, without looking for the train which he knew should come in about that time. This question, it appears, was first decided, as a matter of law, in favor of the defendant by sustaining the demurrer to the evidence, but afterward it was held that a question of fact was presented for a,jury, and a new trial was ordered. If the evidence conclusively proved the plaintiff’s negligence beyond cavil or dispute, the first decision was right; if it did not, the last order was proper and should be affirmed. (Beaver v. A. T. & S. F. Rld. Co., 56 Kan. 514; Johnson v. Railroad Co., 80 Kan. 456.) A new trial having been granted, the order will not be reversed unless error is clearly shown with respect to some pure, simple, unmixed question of law. (Sanders v. Wakefield, 41 Kan. 11.) The question is resolved into this: Is there any room for doubt or difference of opinion among men of reasonable intelligence, exercising candid judgment, whether the plaintiff used the care which an ordinarily prudent person would have exercised in the circumstances disclosed by the evidence? (Grand Trunk Railway Co. v. Ives, 144 U.
It was said in Railway Co. v. Bentley, supra, that-“the same degree of diligence is not required of one whose duty compels his presence upon the track as is required from a traveler about to cross.” (p. 225.) In Jordan v. Chicago, St. P., M. & O. Ry. Co., supra, cited in the Bentley case, it was said in the opinion, referring to the rule requiring travelers upon a highway to look and listen at railway crossings:
“That this rule is not to be applied to the case of one who is employed in a railroad yard, and whose duties frequently make it necessary for him to go upon the tracks, and the exigencies of whose duties may call upon him to do so without premeditation or time or opportunity to ascertain if it is dangerous to do so; that the act of such a person in placing himself upon the track, in the discharge of his duty, without looking or listening, is not per se negligence, but may be negligence or not, according to other circumstances in the case, of which the jury are to judge.” (p. 9.)
This subject'has been recently considered by this court in Ray v. Railway Co., 82 Kan. 704, where it was held that as the. plaintiff in that case was injured while performing a duty which required him to be upon the track he was relieved from the absolute duty of keeping a lookout, being required only to exercise reason
“The jury found specially that the plaintiff could have seen the car if he had looked, and that the motorman could not have stopped it after seeing him upon the track in time to avoid the accident. But the general verdict implies findings that the plaintiff’s situation was such that he was under no absolute duty to keep a lookout, that he used diligence adapted to the situation, and that the motorman should have anticipated that he might get upon the track.” (p. 707.)
If it be suggested that there is a distinction between that case and this, that there the workman was in a stooping posture, intent upon his work, while here the plaintiff stood upright and needed only to turn ‘his head sufficiently for a backward look, then it should be observed that the laborer in the Ray case was in the same attitude when he stepped upon the track, and a look at that time would have revealed the danger to him also. It is true that in this case the plaintiff knew that the passenger train should come in about that time, and in this respect it differs from the Ray case — presented another circumstance for the consideration of a jury, but did not change that into a matter of law which is essentially a question of fact. It still remained for a jury to determine whether the plaintiff ought, in the exercise of reasonable prudence, to have looked out for the expected train, in view of the nature of his duties and the importance of attending to the work of removing his own train to the siding, and the dangers to be apprehended. In the language of Mr. Justice Harlan.:
“In determining whether an employee has recklessly*222 exposed himself to peril, or failed to exercise the care for his personal safety that might reasonably be expected, regard must always be had to the exigencies of his position, indeed, to all the circumstances of the particular occasion.” (Kane v. Northern Central Railway, 128 U. S. 91, 95.)
(See, also, Comstock v. U. P. Rly. Co., 56 Kan. 228; St. Louis, I. M. & S. R. Co. v. Jackson, [Ark. 1906] 6 L. R. A., n. s., 646; Shoner v. The Pennsylvania Comyany, 130 Ind. 170.)
It should be observed that the plaintiff’s work was, upon and along the track. This is not the case of an employee coming from .some other place of duty away from the track, and walking upon or crossing it without looking. In this respect the case differs from many others where this general subject has been considered.
Decisions have been cited wherein this court has held, that employees were chargeable with contributory negligence as a matter of law. These cases have been carefully considered, but are believed to be distinguishable from the one here presented. Where there is no absolute rule imputing negligence as a matter of law, it must be-determined upon the circumstances of each case, and may be one of fact or of law, as the circumstances may disclose. The boundary line between cases where, under the evidence, the question of negligence is one of law for the court, and those where it is one of fact for the jury, is. not always easily traced, and may be perplexing in this instance; but, following the decisions of this court already cited, we conclude that the district court did not err in holding that the evidence presented a case for a jury.
The plaintiff presents a cross-appeal, based upon the rejection of the testimony offered to show the distance within which the passenger train could have been stopped. This evidence was competent, and the witnesses appear to have been qualified to testify. (U. P. Rly. Co. v. Shannon, 33 Kan. 446.) The offer was
The order for a new trial is affirmed.
Dissenting Opinion
(dissenting) : The case of Ray v. Railway Co., 82 Kan. 704, was decided upon an interpretation of the facts. Although the plaintiff was merely picking up a board, he was in fact doing the last act of clearing the track. Therefore he was placed in the category of those who work on the track, and consequently are relieved from the absolute duty of looking and listening. Still, such persons must keep a lookout consistent with their duties. I am unable to assign the plaintiff to that class. His work did not hold his attention to the narrow field of a place on the track. It was his business to go about among the fixed, movable and moving things of a brakeman’s environment, looking out for himself, for others, and for the company’s property. He was entitled to no warning that he was about to step off the depot platform and upon the track, or that he was about to encounter some obr struction to his movements. An active vision of wide range was a necessary qualification for the performance of his work, and consequently the Ray case and others of like kind do not apply.
When the plaintiff is taken out of the class governed by the Ray case it is plain that it was incumbent on him to take the momentary glance necessary for his safety before stepping in front of the oncoming passenger train. • The passenger train was expected. The plaintiff was assisting in'clearing the track for it. Yet, he says:
“I did not see it [the passenger train]. T did not look for it. I did n’t look back. I stepped on the track without looking. If I had looked I would have seen the train. Of course if I had seen it I would not have stepped in front of it. If I had not stepped in front of the train I would not have been injured. I could*224 have seen, train 221 as far north as I could see our way car south. The reason I did not see it is because I did not look; I had my face toward our conductor, and my back toward 221.”
These admissions show contributory negligence as a matter of law.
