Atchison, Topeka & Santa Fé Railroad v. Walz , 40 Kan. 433 ( 1888 )

The opinion of the court was delivered by

JOHNSTON, J.:

The collision between the threshing machine and the railroad train occurred at a point in Atchison county where a public and much-used highway crosses the tracks of the Atchison, Topeka & Santa Eé Railroad, the Central Branch Union Pacific Railroad, and the Missouri Pacific Railway. At that place the tracks extend in the same direction, and are only a few feet apart. It was averred and claimed by Walz that the defendant, in connection with another railroad company, employed a flagman at the crossing to warn persons of the approach of trains, and to signal them when they could cross in safety, and that the flagman so authorized signaled Walz to cross on the occasion of the injury.

The railroad company, by an answer duly verified, alleged that it did not keep or employ a flagman at the crossing, and if there was one there he was employed by some other party, and had no authority to act for it. The court admitted testimony showing that a flagman had been stationed at this crossing for years, who had signaled parties approaching the railroad tracks, and also submitted to the jury the questions as to whether the flagman was the servant of the company, and whether the collision resulted from his negligence. It is urged that the verified allegation of want of authority in the flagman should have been taken as true in the absence of a verified reply under §108 of the code, and that the court erred in allowing such testimony, and by instructing the jury as it did. The allegation in the answer was a negative one, and did not state the existence of any appointment or author-1. Denial failure to verify. ity- There was no occasion to deny a denial, Authority was alleged by the plaintiff and denied by the railroad company, and this closed the issue and rendered any further averment or denial by the plaintiff unnecessary and improper. The issue thus formed warranted the introduction of testimony, and an instruction of the court upon the same. Besides, testimony showing that a flagman had been stationed there for years, and who had warned all persons approaching when they could cross in safety, and that he had signaled the plaintiff to cross, was admissible to refute the charge of negligence on the part of the plaintiff. The jury were charged that, if the flagman was neither an employé nor servant of'the company, it would not be liable on account of any negligence of his; and there is a finding by the jury that the flagman was not employed by the defendant, and had no authority to act for it; so that, in any view of the case, the railroad company has no cause for complaint.

Another objection is, that the court instructed the jury with reference to. the duty of the railroad company in sounding the whistle at least eighty rods from a public crossing. The crossing was outside of any city or village, and there was testimony that the whistle was not sounded as it should have been, and it was therefore one of the questions in the case. The objection is based on the ground that the plaintiff was aware of the approach of the train when it was about 700 yards away, and therefore a failure to give the signal was not negligence as to him. Of course, if the plaintiff knew that the train was coming, he needed no warning of such fact, and the omission 2. Railroad com-tosoüñailure cViaénteüao‘ crossing. to sound the whistle will not create a liability , . J when such omission or neglect of duty did not in any way contribute to the injury. (A. T. & S. F. Co. v. Morgan, 31 Kas. 77.) It might be that a signal would be advantageous to a traveler approaching a railroad track, although he might see the train in the distance. If he saw the train, but was unable to determine from his point of observation whether it was far away or near at hand, or whether it vpas advancing or standing still, would not the signal be beneficial to him, and serve one of the purposes for which it was intended ? In the present case, however, no prejudice could have resulted to the company from the instruction as to the duty of the company in giving signals. Connected with the statement as to this duty of the company, and as a part of the same instruction, the jury were distinctly charged that even if there was a failure to give the signal and an injury followed, the railroad company would not be liable, unless the injury was the result of such failure.

It is claimed that no negligence can be imputed to the railroad company, and that the injury was unavoidable. The jury have found that there was negligence on the part of the engineer in failing to bring and keep his engine under control after seeing the threshing train coming upon the track. No want of care can be charged to Walz. When he approached the track he looked in the direction from which the train was coming, but it was not in sight. He waited there until he was signaled to cross, and then he started his train, and was upon the track when he discovered the coming train. He had then advanced too far to turn about, and the only chance of escape was to hasten forward. This train consisted of a team of horses, a traction engine, a tank, a separator, and a stacker. They were all attached together, making quite a long train, which was difficult to handle, but which could be easily seen by the engineer. They were seen by him when he was more than 700 yards away, and his train was then moving forward at a speed of 35 miles an hour. He reduced the speed to 20 miles an hour, and brought his engine under control, and could then have stopped the train before reaching the crossing. He ran on, however, within about 200 yards, or as he stated, within six or seven car-lengths from the crossing, and the horses, engine and tank had then crossed the track, and the separator was upon the track. He states that he thought there was then sufficient time for the remainder of the threshing train to cross over, and he released the air-brake and increased the speed. Just at that time the coupling between the separator and the tank-wagon parted, and the engineer again applied the air and reversed the engine, but he was then too close to the crossing to avoid a collision. The threshing train was about 58 feet long, and was an unusual and cumbrous outfit to be found passing over the track. It was seen and its character known by the engineer. He could not count upon the track being cleared of such an obstruction with the same certainty as he could if it had been a single team and vehicle. In view of the nature of the obstruction and the action of the engineer in running so close to the crossing while the separator was yet on the track, his release of the air-brakes, by which he lost control of the engine at that time, and the fact that the tank-wagon was only 20 feet from the track when the collision occurred, we think it was fairly a question for the jury whether the engineer exercised reasonable judgment and due care in his attempt to avoid the collision. The jury 3' eviSencesup-ports finding. have found that the accident might have been avoided by the exercise of reasonable care on his ^ part; and after reading all the testimony we are unable to say that the finding and verdict should be set aside.

The other matters referred to in the argument are not such as require attention; and as no material error is found, the judgment of the district court will be affirmed.

All the Justices concurring.