Union Pacific Railroad v. Entsminger , 76 Kan. 746 ( 1907 )

The opinion of the court was delivered by

Benson, J.:

The negligence of the defendant company in failing to sound the whistle on approaching the crossing was found by the jury. The only matter that we deem it necessary to comment upon is the alleged contributory negligence of the plaintiff in failing to look for an approaching train. After he left his field, and while driving his herd east along the road parallel to the track, he stopped and looked and listened several times; and when he reached the point 400 feet west of the crossing he diligently looked along the track. From that point to the crossing his view to the west was unobstructed 'for half a mile. He was assisted by a suitable person in managing and driving his cattle, and was having no difficulty with them, and there wás nothing to prevent his looking for a train. But he did not look after leaving that point until his attention was drawn to the coming train by its rumbling, when he was 100 feet from the crossing and the head of his herd was just going upon the track. He then made all possible effort to save his cattle, but he could not, for want of time.

In these circumstances the rule announced in U. P. Rly. Co. v. Adams, 33 Kan. 427, 6 Pac. 529, applies. The plaintiff ought to have looked and listened within the 400 feet before driving his cattle upon the track, which itself was a warning of danger. He was familiar with the place and knew the peril, but still neglected to take the ordinary precautions after stopping at the point mentioned. In Railroad Co. v. Holland, 60 Kan. 209, 56 Pac. 6, it was held:

“A person familiar with a railroad-crossing, where she was injured, and who knew that a train was due, looked for a train when she was on a road 111 feet away from the crossing, and afterward drove the distance named on a road parallel with the track and upon the crossing without looking for a train, when, if she had looked at any point within 100 feet of the crossing, or when she was about to cross, she could have seen the coming train and averted the injury. Held, that she was guilty of contributory negligence.” (Syllabus.)

The plaintiff in that case had looked for a train when she was 111 feet from the crossing, but not afterward, the view being unobstructed, and she was held to be guilty of contributory negligence. The plaintiff in that case knew that a train was due; while in this case the train that inflicted the injury was late. Mr. Entsminger, however, appears to have been sensible of the danger, for he watched for a train at other points, and it will not do to say that a person in such circumstances need only look and listen at the times when regular trains are due. It is common knowledge that trains are often run that are not upon schedule time, and that regular trains are often delayed. The plaintiff'was approaching a public crossing of a great line of railway, and was thereby warned of danger; his failure to use his senses is not excused by the fact that the train was late.

In view of the peril to others as well as to the one whose person or property is injured, the rule requiring vigilance on the part of persons at railroad-crossings, so often announced by this court, cannot be relaxed. (Railroad Co. v. Willey, 57 Kan. 764, 48 Pac. 25; Young v. Railway Co., 57 Kan. 144, 45 Pac. 583; Bressler v. Railway Co., 74 Kan. 256, 86 Pac. 472; Railway Co. v. Wheelbarger, 75 Kan. 811, 88 Pac. 531.)

As the findings of the jury state the facts upon which the plaintiff’s negligence appears, the judgment is reversed, with directions to the trial court to render judgment in favor of the railway company.