Union Pacific Railroad v. McCullough , 77 Kan. 843 ( 1907 )

Per Curiam:

In this case the defendants in error recovered judgment for $3375 for the negligence of the railroad company’s trainmen which resulted in the killing of their son at a crossing in Solomon. The defense was a general denial and contributory negligence. The evidence has been examined and found sufficient to sustain the finding of negligence on the part of the trainmen. It appears from the evidence and findings that the heads of the team the boy was driving were over or across the first rail of the track upon which the train which killed him was approaching when it was first possible for him to see the approaching train; that he immediately whipped up and attempted to cross ahead of the train, but his wagon was struck by the engine and he was killed. The circumstances were such that it was peculiarly a question of fact for the jury whether the boy exercised reasonable care to discover the approach of the train and whether he did what a reasonably prudent person would do under all the circumstances to avoid the danger after he discovered the approaching train. We cannot say that their findings are not supported by evidence nor that under the undisputed facts the boy was guilty of contributory negligence.

The trial errors assigned have been examined, and we find nothing to justify a reversal of the case. The judgment is therefore affirmed.