Vance v. Atchison, Topeka & Sante Fe Railway Co.

ALLEN, P. J.

Appeal by defendant from a judgment based upon the verdict of a jury and from an order denying a new trial in an action brought to recover damages occasioned by defendant’s negligence in the operation of its trains.

The proposition is not, and cannot well be, questioned that there is evidence in the record warranting the implied finding of negligence upon the defendant’s part. Appellant, however, contends that the record discloses such contributory negligence upon the part of plaintiff’s servant in charge of the property injured as to preclude recovery.

Upon the trial there was evidence offered by plaintiff tending to show that the servant of plaintiff, standing upon the front end of a wagon, was driving a six-horse team by means of a check-line. The road upon which he was traveling was intended for use in connection with a lime-kiln and was mostly used by those having business at such kiln. It crossed the defendant’s main and side tracks, intersecting the main road which paralleled such tracks. The driver was proceeding with his team from the kiln toward the railroad track, the view along which to the east was entirely obstructed between the kiln and sidetrack. When the lead horses were about twenty feet from the nearest sidetrack, upon which a box-car was standing, which was one of the obstructions to the view eastwardly, one of the tugs became disarranged and the driver left his place on the wagon and rearranged the tug. While on the ground he listened for the approach of a train and heard none. He could not from this point see eastwardly up the track any distance on account of this box-car. Hearing no approaching train, the driver resumed his place on the front end of the wagon and started to drive across the track. When he was at a point where he could obtain a view along the track to the east, the leaders were within three or four feet of the main track. At this point he saw the train and was for the first time in a position where it was possible for Turn to see an approaching train from the east. The train was then only about fifty feet away and was running at a

[22]

high rate of speed. Here, for the first time, the men in charge of the train employed the whistle. Danger being imminent, the driver applied the brakes and jumped from the wagon, but the collision was inevitable.