Whitehead v. Missouri, Kansas & Texas Railway Co. , 83 Kan. 221 ( 1910 )

Per Curiam:

The plaintiff was injured by his horses running away while he was driving across a railroad track. He sued the railway company for damages and recovered a judgment, from which the defendant appeals. The only question presented is whether the judgment is consistent with the special findings, which showed these facts: The highway on which the plaintiff was traveling crossed several tracks near the depot. As he approached the crossing from the west it was blocked by a passenger train, and he stopped thirty or forty feet from the first track. On the third track he saw an engine standing still, headed to the north, about seventy feet south of where the traveled part of the highway crossed that track. The passenger train pulled out, the engine on the third track remaining motionless, and the plaintiff attempted to drive across the tracks. About the time he got upon the first track, or immediately after, the engine started forward, emitting clouds of steam, which settled down toward the ground in the direction of the team, and, as they were crossing the third track, the engine being then about twenty or twenty-five feet away, frightened them so that they ran away. The fireman saw or could have seen the plaintiff as he was about to cross the first track, before the engine was started. The bell was not rung before starting. If it had been the plaintiff would not have attempted to cross. The engine had been standing still for at least five minutes before it was started across the street.

Under these circumstances it was for the jury to determine whether, inasmuch as the plaintiff started to cross the tracks while the engine was standing still, it was not the duty of the crew to wait until he had crossed before starting, and also whether it was not negligence on their part to start without some preliminary signal to warn thé plaintiff that they were about to do so.

The plaintiff’s conduct in starting to cross the tracks while the engine was standing near the crossing can not be regarded as necessarily constituting contributory negligence on his part, for he had no means of knowing when it would start. (Railway Co. v. Dawson, 64 Kan. 99; Railway Co. v. Wilkie, 77 Kan. 791; 33 Cyc. 1101, 1107, 1127; 11 L. R. A., n. s., 963, note.) If the plaintiff’s horses had become frightened by the engine while still at rest an entirely different question would be presented.

The jury found that the emission of steam from the engine just as the plaintiff was crossing the track was needless, but not careless on the part of the engineer. Other findings show their meaning to be that the fault lay with the fireman, since he could have seen the plaintiff, while the engineer could not.

The judgment is affirmed.