89 Kan. 35 | Kan. | 1898
Joseph L. Williams was struck and killed by a car of the Atchison, Topeka & Santa Fe Railroad Company at a crossing in Hutchinson. He was traveling south on Main street, across which two railroad tracks were laid, one called the main track and the other a side or passing track. He first reached the sidetrack, upon which a freight train stood, but which had been cut at the Main-street crossing. The engine, with the greater part of the train, was east of the street, and the rear cars of the divided train were on the west side of the street. Williams passed along the street and over the track, but a few feet further south he found a freight train passing over the main track. While standing close to the passing- track, waiting for the, train on the main track to pass over the street, the front portion of the divided train was backed against him, whereby he was killed.
Hattie Williams, the widow, brought this action for the recovery of damages, and after her testimony was introduced the court sustained a demurrer thereto, and gave judgment for the defendant.
The testimony certainly tends to show negligence on the part of the railroad company. That the company was negligent was not denied, but it is contended that Williams’ death resulted from his own want of ordinary care. If contributory negligence is shown by the plaintiff’s own testimony, the court was justified in sustaining the demurrer; but it can not be done unless the court is able to say as a matter of law that contributory negligence was shown. We think the testimony was sufficient to take the case to the jury. While Williams was bound to use care and caution to avoid injury at the crossing, and while'he might easily have taken a position between the two tracks where there would have been no danger of collision, there are some circumstances which can not be overlooked in determining whether he exercised a degree of care such as a man of ordinary prudence would have exercised under similar circumstances. It does not appear whether he observed that there was an engine attached to the cars upon the sidetracks, nor that there was any brakeman or other employee on or about the cars which would indicate that they were about to- be moved. The train being’ divided and the street clear
The judgment will be reversed and the cause remanded for a new trial.