Manhattan, Alma & Burlingame Railway Co. v. Stewart , 30 Kan. 226 ( 1883 )

The opinion of the court was delivered by

Horton, C. J.:

Upon the trial, one Halloways, a witness for the plaintiff below, was asked the question, “How long does it take to stop a train?” The railway company objected to the question as incompetent and immaterial, and because the witness was not an expert. The objection was overruled, and the witness answered: “ It takes about one hundred yards to stop a train.” The purpose of the question was to establish the negligence of the company, and the plaintiff sought, to show by the answer of the witness that the train was not, stopped within the proper distance. Had the witness been interrogated concerning the rate of the speed of the train, he might have been permitted to answer, as any intelligent person who is accustomed to observe moving objects would be able to express an opinion of some value upon it the first time he ever saw a train in motion. But the question objected to was one which could only be answered by a person of experience in the running of trains and in cheeking their speed, or by one who had such opportunities as entitled him to speak as an expert. The objection, therefore, should have been sustained, as the witness was incompetent to answer.

It is insisted, however, that as Halloways was an eye-witness of the accident and its attending circumstances, and as he lived in the immediate vicinity and had frequently seen trains stopped, that what he testified to related to a matter of observation. We cannot consent to this view. The witness was not asked how long it would take to stop the train which committed the injury complained of, nor was he asked in giving his answer to take into consideration the velocity of the train, the grade of the track where the injury was committed, or any other circumstance connected therewith. As asked and answered, the question does not belong to that class which relates to experience and observation as to affairs of every-day life, to which the attention of all is directed, and of which all are competent to speak.

Further, it is urged that this evidence was not prejudicial, on the ground that another witness, more familiar with the circumstances, testified in the same manner without objection. Upon examination of the record we find that this statement is not fully sustained. Allen, the witness referred to, was not asked “ How long does it take to stop a train ? ” but did testify, “I give the signal, and they [the trains] generally stop in one hundred yards.” He testified to a fact coming under his observation, but gave no opinion.

In the direction to the jury the court charged : “It is not negligence to whistle to frighten stock from the track; but if the jury find from the evidence in this case that under the circumstances the natural effect of sounding the whistle as done by the engineer would be to drive the stock toward the track, then such whistling was negligence.” This instruction is erroneous. Sec. 60, ch.23, Comp. Laws of 1879, provides:

“A steam whistle'shall be attached to each locomotive engine, and be sounded three times, at least eighty rods from the place where the railroad shall cross any public road or street, except in cities and villages, under a penalty of not more than $20 for every neglect of the provisions of this section, to be paid by the corporation owning the railway, on the suit of the county attorney, one-half thereof to go to the informer, and the other half to the county for the support of common schools; and the corporation shall also be liable for all damages which shall be sustained by any person by reason of such neglect.”

As the public road crossed by the train was outside of any city or village, the engineer was under duty to sound his whistle three times, at least eighty rods from the place where the railroad crossed the public road; and if he had omitted this duty, he would be guilty of negligence. (Railroad Co. v. Phillippi, 20 Kas. 9.) The findings show that the animal Skilled did not stop after the engineer first blew the whistle.The instruction did not attempt to separate the sounding of the whistle, in compliance with the statute, from any subsequent or unnecessary whistling, and the jury should not have been thus misdirected. Upon the evidence produced by the plaintiff below, the negligence of the engineer, if any, was in increasing the speed of the train after it had slacked up, when the animal started to run along the track.

John Tull testified that “The animals would all' have reached the crossing in time to have crossed ahead of the train, if the train had kept right along at the speed it was going, after it slacked up and before starting up again.”

The judgment of the district court will be reversed, and the cause remanded.

All the Justices concurring.