Atchison, Topeka & Santa Fé Railroad v. Smith ex rel. Smith , 28 Kan. 541 ( 1882 )

The opinion of the court was delivered by

Valentine, J.:

This was an action brought by James Smith, an infant, by his next friend, William Smith, against the Atchison, Topeka & Santa Fé railroad company, for damages alleged to have been caused by the negligence of the railroad company. The action was tried before the court and a jury, and judgment was rendered in favor of the plaintiff and -against the defendant for the sum of $5,000 and costs. The defendant, as plaintiff in error, now'brings the case to this court, and asks for a reversal of such judgment. .

With regard to many of the facts of the case, there is no dispute; but with regard to others, the parties do not agree. Among the undisputed facts we would mention the following:

Statement of facts. The plaintiff below (defendant in error), at the time he received the injuries complained of, was a child two years and twenty days old. 'The defendant below (plaintiff in error) was at that time and still is a railroad corporation, and was engaged ^ie operation of a railroad through Osage City, Osage county, Kansas. It had constructed upon its right of way,-partially outside and partially inside of the corporate limits of Osage City, a switch or spur track, for the accommodation of itself and the Carbon coal and mining company in loading corn, coal, and other, articles of commerce upon the cars of the railroad company for shipment over the company’s railroad. This side track was wholly on the right of way of the railroad company, and ran in nearly a northerly and southerly direction, connecting with the main track at the northern end of the side track — the side track being so constructed that ears would, of their own weight, descend from the southern end of the track to a point about seventy-five feet from the connection with the main track, from which place there, was an ascending grade to the point of connection, which would generally prevent the cars from running out upon the main track, though sometimes they would in fact run out upon the main track. The shaft and coal chute of the Carbon coal and mining company were situated by the side of this side track, about one hundred and fifty feet north of the south end thereof — the side track being about four hundred and fifty feet-long from one end to the other. This' side track was used by the railroad company, among other purposes, for pushing in empty coal cars to be loaded ^by the coal company — these empty cars being placed at the south or highest end of the side track; then, as the coal company was ready to use the cars, the brakes would be loosened, and the car of its own weight would run down opposite the coal chute, where it would be fastened by setting the brakes, or by placing a piece of wood or coal under one of the wheels; and when loaded, the car would be permitted to descend to a point about seventy-five feet- from the connection of the main track, where it would usually stop, that being the lowest point of the side track; and as other cars were loaded, they in like manner would be permitted to run down the side track and strike against the loaded cars previously permitted to so run down.

The parents of the plaintiff lived in a small house of two rooms, about ninety feet east of, and nearly opposite, the lowest portion of this side track, the door of the kitchen of the house opening toward the track. Neither the right of way of the railroad company nor the house was inclosed by any fence, and the ground between the house and track was level, and no obstruction intervened to prevent a child from going from the house to the side track,, if left unattended. At the time of the accident the child’s parents had been living at that place for about three years, during the whole of which time cars were being handled by the coal company, as above described; and the manner in which cars were loaded and run down the side track was well. known to the child’s parents. At the time of the accident the father of the child was at work for the coal company, in the coal shaft at which the cars were being loaded. The mother was inside of the house, “picking raisins” and talking to a neighbor, in the principal or east room of the house. Just prior to the accident the mother gave the child some raisins and it went into the kitchen, she knowing that the kitchen door was open toward the track, and that there- was nothing to prevent the child from going upon the track. After the child had been out of the east room about four or five minutes, the mother heard the car running down the side track, and got up and went to the door to see what had become of the child, and hearing it cry went out and found it'under one of the cars, it having sustained the injuries complained of. No person saw the child from the time it left.the>east room of the house until after the accident. One car had been loaded aud run down to a point opposite plaintiff’s house before the accident occurred; and the injuries were caused by permitting a second car to run down near the same point.- The second car ran partially over the child — the front'wheels on the east side running over the child’s right arm and left hand, and crushing them. Whether the first car, was -pushed over the child, previous to the second car running over it, is a disputed question of fact. At the time the accident occurred no servant, agent or employé of the plaintiff in error was in sight, the only persons in sight being J. B. Williams, the foreman, in charge of the coal shaft, and »his assistant, Christ. Black, employés and servants of the coal company, over whom the railroad company had no control,, At the time that the second car was loaded, Williams and Black were on top of what they call the “dump.” In other words, they were on top of the platform at the top of the coal shaft, where coal is “dumped” into a chute which conducts it to a car, for the purpose of loading the car. When the--ear was-loaded in the present case — the second car — Williams and Black came down from the “dump” and upon the top of the car; and Williams then went down over the south end of the car for the purpose of getting another empty car; and Black went to the wheels at the southeast corner of the car and removed the obstructions from the wheels, thereby permitting the car to start; and the car ran down the grade of the side track as before stated, and caused the injuries complained of. Prior to permitting this car to move, neither Williams nor Black went down to the standing car to look under it or behind it to see whether any person was in danger, or not; nor did either of them stoop down so as to look under the car; nor did either of them move to one side or the other, so as to look behind it. If the child had been at any point between the standing car and the second car, it would have been in plain view from the coal shaft and from the second car.

The only disputed questions of fact are the following:

1. Was the child between the standing car and the second car, or was he north of the standing car or under it, so that he could-not have been seen from the coal shaft or from the second car?

2. Did Williams or Black, or either of them, look down the side track toward the standing car, for the purpose of seeing whether the track was clear or not, before they loosened the second car?

The plaintiff in error (defendant below) claims that the child was north of the first car, or under it, so that it could not have been seen from the second car or from the coal shaft, and that the second car when it ran down the side track, struck the first car and caused it, as well as the front wheels of the second car, to run over the child and injure it; while the defendant in error (plaintiff below) claims that the child was not run over by the first car, but only by the second car.

The plaintiff in error (defendant below) also claims that both Williams and Black, and certainly Williams, looked down the side track toward the standing car, for the purpose-of seeing whether the track was clear or not, before Black loosened the second car, and that at that time the track was entirely clear; while the defendant in error (plaintiff below) claims that neither Williams nor Black looked down the ■side track at that time.

Nearly all the questions of law involved in this case have ■already been decided by this court; for this is the second time that the case has been to this court. (Smith v. Atchison, Topeka & Santa Fé Railroad Company, 25 Kas. 738.) It has virtually already been decided-’ by this court that the child was too young to be held responsible for any contributory negligence of its own. It has also been held by this court that the question whether the parents, under the circumstances of this case, were guilty of contributory negligence or not, was a question of fact, which •Should be submitted to the jury, and could not be determined one way or the other as a question of law by the court. It has also-been determined by this court, that if neither Williams nor Black looked down the side track for the purpose of seeing whether the track was clear or not, before they loosened the second car, and if the plaintiff was at the time in such a situation that he could have been seen by them, if they had looked, then that they were guilty of negligence, (the question however being one of fact for the jury,) for which negligence the railroad, company should be held responsible. The facts with reference to these questions appear at this time to be substantially the sarrm as they appeared to be then; and hence it is not necessary to restate the facts specially with reference to these particular questions, but only to say that we reaffirm the decision of añ the questions which were decided by us when the case was here before, and that we shall now consider specially only Such questions as are new.

The only questions of law or fact now to be considered or to be decided are the following T

1. Did Williams or Black, before Black loosened the second car, look down the side track) toward the standing car, to see whether the track was clear or not?

2. Was the plaintiff in such actuation that he could have been seen if Williams or Black had looked down the side track for the purpose of seeing whether the track was clear or not? Or was was he north of or under the standing cár, so that he could not have been seen from the coal shaft or from the second car?

3. And supposing the plaintiff to have been north of or under the standing car, and in such a situation that he could not-have been seen by either Williams or Black from the coal shaft or from the second car, then was it negligence to leave such standing car in the condition in which it was left, and in permitting the second car to run down against it with such force as to push it over the plaintiff and injure him as he was injured?

4. And were these questions fairly submitted to the jury?

There is no claim that the court below erred with reference to the admission or exclusion of evidence. It is claimed, however, that the court below erred in giving instructions to the jury; but we do not think that the court below so erred; and even if it did, no proper exception was taken, and hence the error was waived.

It is also claimed that the court below erred in refusing to give instructions to the jury, and in overruling the motion of the defendant for a new trial.

I. The first question above mentioned — that is, whether Williams and Black (before they permitted the second car to move) looked to see whether the track was clear or not — we think was fairly submitted to the jury, and the jury found against the defendant and in favor of the plaintiff thereon. The jury found a general verdict in favor of the plaintiff and against the defendant, which is presumptively a finding in favor of the plaintiff and against the defendant upon all disputed or contested questions of fact. The jury also found specially as follows:

“Q,. 19. Did not J. B. Williams, at the time he and Christ. Black came out of the coal shaft over the loaded car, look to the north toward the standing car on the track near plaintiff’s house for the purpose of seeing whether there were any children on the track or in a place of danger? A. We think not.”

The defendant (plaintiff in error) however claims that this special finding is against all the evidence introduced in the case upon this subject. Williams testified directly and positively that he did look while he was at the coal shaft and just .¡before the second car was loosened, to see whether the track was clear or not, and that it- was clear; and there was no evidence contradicting this,testimony of Williams except the circumstances of the case. We shall revert to some of these circumstances hereafter. - „ ,, .

Under the general verdict of the jury and the evidence, we must consider it as settled that Black did not look to see whether the track was clear or .ribt. •

■ II. The second question above mentioned cannot be answered as the case is now presented to this court. No person saw the child fro.m the time it left its mother’s kitchen until after it was injured; and what its situation was with respect to the standing car, no one had any positive knowledge. The weight of the testimony, however, would seem to indicate that the child was at the north end; of the 'Standing car, and behind it from where Williams and Black were at work, so that they could not see it. The mother of the child, who was the first person to see it after it left her kitchen and after it was injured, testified that she thought that the standing car ran entirely over it; and the testimony of Williams and Black' would clearly indicate the same thing, while some of the circumstances of the case would seem to-indicate that only the front wheels of the second car ran over the child. The jury could not answer the question. . In answer to the question, “How many wheels passed over the child’s arm at the time it was injured?” the jury answered, “We do not know,” indicating clearly that even the jury could not tell where the child was before it was injured, or what its situation was with reference to the standing car. As the record furnishes no answer to this second question, we shall have to pass it without giving any answer thereto. ,„

III. But supposing the plaintiff to have been north of or under the standing car, and in such a situation that he could not have been seen by either Williams or Black from the coal shaft, or from the second car: then was it negligence to leave such standing car in the condition in which it was left, and in permitting the second car to run down against it with such force as to push it over the plaintiff and injure him as he was injured?

This question may be viewed in two different aspects: First, was the question, and is it one of law, tó be submitted to the court? or, second, was and is it a question of fact, to be submitted to the jury? And if the .question is one. of law, to be submitted to the court, then the question may be subdivided as follows: Did the acts and omissions of Williams and Black constitute culpable negligence per se, or were they excusable, acts and omissions, or acts and omissions not constituting any culpable negligence?

The members of this court all agree, that, upon the theory that Williams and Black could not have seen the plaintiff from the coal shaft or from the second car, and had no reason to believe or suppose that he was behind or under the standing car, then that the supposed negligence of Williams and Black was not nor is culpable negligence per se, whatever may have been the other facts of the case. The mere failure on the part of Williams and Black to look to see that the ■track was clear, provided they did so fail to look, could not have constituted culpable negligence per se, if their failure to look did not cause or contribute in any manner to the production of the injury to the plaintiff. Whether the supposed negligence of Williams and Black under such circumstances is not culpable negligence at all, or whether the question is one of fact, to be submitted to the jury for their determination, the members of this court have not up to this time been able to agree. But as the case is now presented, we think it is unnecessary that we should agree, or that we should express any opinion upon the question; for, in whichever way we might view the question, we would still think that the judgment of the court below should be reversed, and the cause remanded for a new trial.

The plaintiff in error, defendant below, claims that the question of negligence which we are now considering is one purely of law; that the supposed negligence of’the defendant or the said employés is per se not culpable negligence at all, and cites the following, among other cases, upon which it seems specially to rely: Van Schaik v. H. R. Rld. Co., 43 N. Y. 527; C. B. U. P. Rld. Co. v. Henigh, 23 Kas. 347; Lafayette &c. Rld. Co. v. Huffman, 28 Ind. 287. But these cases would hardly seem to be in point. In the case of Van Schaik v. H. R. Rld. Co., the party injured was a man “of mature years, of acute and trained mental faculties, of large experience, and acquainted with the ways of travel and the localities over which he was then passing;” and in that case the decision was against the plaintiff, on the ground of the contributory negligence of the' person injured; while in the present case the person injured is a child of scarcely any understanding, being only two years and twenty days old, and his parents had no knowledge that he was On the railroad track. In the Henigh case, the car which did the injury was not near a city, but was situated near only a small village of only five or six houses. In that case the car was properly fastened by the employés of the railroad company, and was not afterward put in motion by any person having any connection with the railroad company, but was put in motion by the party injured himself; while in th'e present case the cars that did the injury were within the vicinity of an incorporated city, in a comparatively populous place, where children occasionally played, and the north car was not fastened at all; and both cars were set in motion by persons for whose acts in this respect the railroad company is responsible. In the case of the Lafayette &c. Rld. Co. v. Huffman, 28 Ind. 287, the reasons for the child’s being upon the railroad track playing were wholly unexplained, and, from anything appearing in the case, the parents of the child may have known that it was there playing upon the railroad track, and may have been guilty of the grossest contributory negligence; and the case was decided upon this theory.

The defendant in error (plaintiff below), in support of his side of the case, cites the case of K. C. Rld. Co. v. Fitzsimmons, 22 Kas. 686; but we do not think that that case is applicable-to this case. In that case the machinery which did the injury was of that alluring character which would naturally entice boys to play with it and upon it; while in the present case nothing of that kind can be claimed.

As to when the question of negligence must be submitted to the jury as a question of fact, and when it must be decided by the court as a question of law, we would -refer to the following cases: C. B. U. P. Rld. Co. v. Hotham, 22 Kas. 41, 50-52, and cases there cited; K. P. Rly. Co. v. Richardson, 25 Kas. 391. We would also refer to the following authorities as having some reference to this same question and to this particular case: N. P. Rld. Co. v. Kirk, 90 Pa. St. 15; same case, 1 Am. & Eng. Rly. Cases, 45, 52, and cases cited; Frick v. St. L. K. C. & N. Rld. Co., 5 Mo. App. 435; Johnson v. C. & N. W. Rld. Co., 49 Wis. 529; same case, 1 Am. & Eng. Rly. Cases, 155; Cheeney v. N. Y. C. & H. R. Rld. Co., 23 S. C. (16 Hun,) 415; Costello v. Syracuse &c. Rld. Co., 55 Barb. 95; C. B. & Q. Rld. Co. v. Payne, 59 Ill. 534.

If the accident in the present case had occurred at a great distance from any human habitation, at a place where children or other persons were seldom, if ever, seen; and if the employés of the Carbon coal and mining company, or of the railroad company, had not known, orí had any reason -to suppose, that any person was present of in danger, then we could say as a matter of law, that no culpable negligence was committed; but on the other hand, if the accident had occurred within the heart of a populous city, where children frequently played, then we could say as a matter of law', that culpable negligence was certainly committed, and that the facts themselves under such circumstances would constitute culpable negligence per se. But neither of these supposed cases is the present case. The present case occupies a place somewhere intermediate between (these two supposed cases. It occupies such a place that we. think we can say that the facts of the case do not constitute> culpable negligence per se. But supposing tbe plaintiff to have been under or behind the standing car, and out of sight from the coal shaft and second car: then as to whether the facts are such that we could say that they do not constitute any culpable negligence, or that they should be submitted to the jury to determine whether they constitute culpable negligence or not, this court has not as yet fully agreed.

IY. We do not think that the second and third questions above mentioned were fairly submitted to or considered by the jury. It does not appear from the record that the jury had any opinion as to where the plaintiff was, with reference to the standing car, at the time he was injured, or any opinion as to whether it was culpable negligence on the part of Williams and Black to leave the standing car in the condition in which it was left, and in permitting the second car to run down against it with such force as to push it over the plaintiff and injure him — provided the standing car was pushed over him and did injure him. s

The defendant’s counsel submitted to the court numerous instructions in writing, numbered respectively, 2, 3, 6, 9,11, 16, 17, 18, 21, 22, and 23, for the purpose of having these questions submitted to the jury for their determination; but the court refused to give them. The defendant’s counsel also submitted a question to the court to be submitted to the j ury, for the purpose of ascertaining the opinion of the jury substantially as to whether the standing car was pushed over the child’s arm or not, and substantially as to what was the relative position of the plaintiff and the standing car immediately preceding the accident; but the jury simply answered the question, “We do not know.” Indeed, the whole case would seem to indicate that the jury had no intelligent opinion with respect to the relative position or situation of the plaintiff' and the standing car immediately antecedent to the injury complained of, or whether it was negligence or not for Williams and Black to leave the car standing in the condition in which they did leave it, and permit the second car to run down against it — provided the plaintiff-was behind or under the standing car, so that he could not have been seen by Williams and Black from the coal shaft, or from the second car, at the time they permitted the second car to run down the side track. Indeed, it would seem that the case was not decided by the jury upon the real facts of the case; for the real facts of the case would seem to indicate that the plaintiff was behind and north of the standing car, and out of sight from Williams and Black, just prior to the time when he received the injury; while it would seem that the jury supposed that that fact made no difference in the case, and that if they found that neither Williams nor Black looked to see whether the track was clear, just before they permitted the second car to move down the side track, that then they, the jury, should find in favor of the plaintiff and against the defendant, although it might have been impossible for Williams and Black to have seen the plaintiff from the coal shaft or from the second car, and although they may have exercised the greatest possible care and diligence in every other respect. Now it may have been negligence for Williams and Black to have permitted the second car to move down the side track, without first looking down the' track to see that it was clear —provided they did so fail to look; but if their failure to so look did not cause the injury complained of, nor contribute thereto, or in other words, if they could not have seen the plaintiff by looking down the side track, and if they exercised due care in every other respéct, then the railroad company should hardly be held to be responsible for such failure on the part of Williams and Black to look. Their negligence in such a case could hardly be held to be culpable-negligence per se, with respect to the injury that actually occurred.

The judgment of the court below will be reversed, and the cause remanded for a new trial.

All the Justices concurring.