The opinion of the court was delivered by
Cunningham, J.:
These two cases have been submitted together. They arose from the same set of facts; the same act of negligence on the part of the railroad company caused the death of Mark Withers and that of Walter Dewese, which was the basis for these actions. Judgments for $7000 and $6500, respectively, were entered against the defendant company, which it seeks to have reversed by these proceedings in error.
These men were killed on Fourth street of the city of Topeka, which runs approximately east and west, and is crossed at right angles by thirteen tracks of the defendant’s railroad, those numbered from 1 to 10, commencing on the east side, being used for switching and yarding purposes, and over and along them, especially during the evening and night, many cars are switched back and forth. These tracks are standard guage, their rails being 4 feet 8£ inches apart. The distance between the tracks themselves is about 8 feet and 7 inches. A sidewalk on the north side of the street crosses all of them from east to west, over which many persons pass, especially during the evening hours of Saturday. The street, over its entire width across these tracks, is laid with planks and filled with cinders, so that its surface is even with the tops of the'rails. The sidewalk is made entirely of planks. [622]*622No gates are maintained, or watchmen kept, to guard this crossing during the evening or night.
The accident which resulted in the death of these men occurred about nine o’clock Saturday evening, February 1, 1902. The night was dark, the wind was blowing with considerable velocity from the north, the weather was cold, and there was some snow on the ground. Max’k Withers was then in the employ of the railroad company and had been for several years ; his business was .that of a switchman in the company’s yards at Topeka. He was thoroughly acquainted with those . yards and with the frequency and manner of handling trains and cars therein. Walter Dewese was also an employee of the company as a laborer in its shops at Topeka, and had been such for about two months. It seems that he was acquainted with the crossing in question, but was not familiar with the sux-roundings as they then existed. They both knew, however, that they were crossing these tracks.
Withers, in company with one Furman, started along the sidewalk ofx Fourth stx’eet shortly before the occurrence of the accident to cross the tracks, going eastward to his home. As they came near track 4 they observed a train switching along track 3, which obstructed their progress and caused them to halt on or near track 4. Soon thereafter they were joined by Dewese, coming from the same direction. Two other persons, Burt Sutton and Grover Stitt, and possibly others, were halted for the same reason ; they, however, wex-e standing in the space between tracks 3 and 4. All these men came fx^om the west within two or three minutes of one another, and remained waiting from three to five minutes for the passage of the train on track 3. To protect themselves from [623]*623the cold, they had their collars turned up and their caps pulled down over their ears, but it does not appear that their sight or hearing was materially interfered with thereby ; on the contrary, the jury found that their sight and hearing were good.
North of Fourth street two blocks is a track known as a “lead-track,” on which another switching crew with an engine were operating. This crew, in order to locate a heavy refrigerator-car upon track 4, kicked the same south, expecting it would stop at some point before it reached Fourth street. This car was unattended by any one and unaccompanied by signal or warning. For some -reason, perhaps because of an extra hard shove, or because of the wind’s blowing from the north, or both, this car, instead of stopping north of Fourth street, came on, running upon and killing Withers and Dewese, and stopping near the south line of Fourth street. Sutton and Stitt were uninjured, though slightly hit by the car.
Much evidence was introduced to show that the deceased men were standing upon track 4; it seems highly probable that they were, though the jury found that they were not; but whether they were exactly upon the track or not seems of small moment, for the fact is that if they were not between the rails they were in a place of equal danger. It was not ■necessary for them to stand in a place of danger, as they could have stopped west of track 4, or could have safely stood between tracks 3 and 4. At the time there was a car standing on track 5, north of Fourth street, but just how far it does not appear; probably not very far. There was an arc electric light to the southwest, about 120 feet away. There was a switch-man’s shanty on the north side of Fourth street close to the sidewalk, about 100 feet west of the place of. [624]*624the accident. Under favorable conditions this oncoming car could have been seen for forty feet north of the sidewalk.
The jury specially found that the men were careful and that they were not guilty of Contributory negligence. It was further found that, somewhere between the switchman’s shanty and track 4, they looked north, but saw nothing ; that while they were standing waiting for the train to pass on track 3 they were looking east; that they listened for the purpose of determining whether a train or car was approaching while so standing, but heal'd nothing because of the noise of the other train; that had they then looked north they could not have seen the unlighted car approaching, being prevented by the car standing on track 5, north of the sidewalk, the running train on track 3, the smoke and steam from the engine drawing said train, the darkness of the night, and the absence of light or other signal on the oncoming car.
At the close of the plaintiff’s evidence, which showed the facts substantially as above set out, defendant presented a demurrer thereto, which was overruled. The defendant’s evidence added little, and at its close the court was requested to instruct the jury to return a verdict for the defendant, which instruction was denied. These rulings are here relied on for error.
The railroad company does not deny that it was negligent. Its contention is that it was relieved from the consequences of this negligence by the contributory negligence of the deceased. We are of the opinion that the facts shown clearly prove the culpable negligence of the deceased, and that the company was thereby relieved from liability for their death. They knew the conditions which surrounded them. They Avere in the full possession of their faculties. They [625]*625knew they were within the limits of the yards, with its many tracks. They saw one train occupying the track in front of them. They knew that the other tracks were in frequent use for a like purpose, and that at any moment any one of the other tracks might be occupied by moving cars. They knew that to stand upon a track, or near enough to one to be hit by a moving car, was a dangerous position. Knowing all these things, and being plainly warned that they were in and upon this network of tracks, it was their plainest duty to see to it that they did not halt in a place of danger. There was ample room for them to stop in a place of safety; others did so. Their exposing themselves to this obvious danger can only be accounted for upon the hypothesis of their reckless indifference to the danger which was so apparent and to their own safety.
We find nothing in the facts of this case to distinguish it from Zirkle v.
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The opinion of the court was delivered by
Cunningham, J.:
These two cases have been submitted together. They arose from the same set of facts; the same act of negligence on the part of the railroad company caused the death of Mark Withers and that of Walter Dewese, which was the basis for these actions. Judgments for $7000 and $6500, respectively, were entered against the defendant company, which it seeks to have reversed by these proceedings in error.
These men were killed on Fourth street of the city of Topeka, which runs approximately east and west, and is crossed at right angles by thirteen tracks of the defendant’s railroad, those numbered from 1 to 10, commencing on the east side, being used for switching and yarding purposes, and over and along them, especially during the evening and night, many cars are switched back and forth. These tracks are standard guage, their rails being 4 feet 8£ inches apart. The distance between the tracks themselves is about 8 feet and 7 inches. A sidewalk on the north side of the street crosses all of them from east to west, over which many persons pass, especially during the evening hours of Saturday. The street, over its entire width across these tracks, is laid with planks and filled with cinders, so that its surface is even with the tops of the'rails. The sidewalk is made entirely of planks. [622]*622No gates are maintained, or watchmen kept, to guard this crossing during the evening or night.
The accident which resulted in the death of these men occurred about nine o’clock Saturday evening, February 1, 1902. The night was dark, the wind was blowing with considerable velocity from the north, the weather was cold, and there was some snow on the ground. Max’k Withers was then in the employ of the railroad company and had been for several years ; his business was .that of a switchman in the company’s yards at Topeka. He was thoroughly acquainted with those . yards and with the frequency and manner of handling trains and cars therein. Walter Dewese was also an employee of the company as a laborer in its shops at Topeka, and had been such for about two months. It seems that he was acquainted with the crossing in question, but was not familiar with the sux-roundings as they then existed. They both knew, however, that they were crossing these tracks.
Withers, in company with one Furman, started along the sidewalk ofx Fourth stx’eet shortly before the occurrence of the accident to cross the tracks, going eastward to his home. As they came near track 4 they observed a train switching along track 3, which obstructed their progress and caused them to halt on or near track 4. Soon thereafter they were joined by Dewese, coming from the same direction. Two other persons, Burt Sutton and Grover Stitt, and possibly others, were halted for the same reason ; they, however, wex-e standing in the space between tracks 3 and 4. All these men came fx^om the west within two or three minutes of one another, and remained waiting from three to five minutes for the passage of the train on track 3. To protect themselves from [623]*623the cold, they had their collars turned up and their caps pulled down over their ears, but it does not appear that their sight or hearing was materially interfered with thereby ; on the contrary, the jury found that their sight and hearing were good.
North of Fourth street two blocks is a track known as a “lead-track,” on which another switching crew with an engine were operating. This crew, in order to locate a heavy refrigerator-car upon track 4, kicked the same south, expecting it would stop at some point before it reached Fourth street. This car was unattended by any one and unaccompanied by signal or warning. For some -reason, perhaps because of an extra hard shove, or because of the wind’s blowing from the north, or both, this car, instead of stopping north of Fourth street, came on, running upon and killing Withers and Dewese, and stopping near the south line of Fourth street. Sutton and Stitt were uninjured, though slightly hit by the car.
Much evidence was introduced to show that the deceased men were standing upon track 4; it seems highly probable that they were, though the jury found that they were not; but whether they were exactly upon the track or not seems of small moment, for the fact is that if they were not between the rails they were in a place of equal danger. It was not ■necessary for them to stand in a place of danger, as they could have stopped west of track 4, or could have safely stood between tracks 3 and 4. At the time there was a car standing on track 5, north of Fourth street, but just how far it does not appear; probably not very far. There was an arc electric light to the southwest, about 120 feet away. There was a switch-man’s shanty on the north side of Fourth street close to the sidewalk, about 100 feet west of the place of. [624]*624the accident. Under favorable conditions this oncoming car could have been seen for forty feet north of the sidewalk.
The jury specially found that the men were careful and that they were not guilty of Contributory negligence. It was further found that, somewhere between the switchman’s shanty and track 4, they looked north, but saw nothing ; that while they were standing waiting for the train to pass on track 3 they were looking east; that they listened for the purpose of determining whether a train or car was approaching while so standing, but heal'd nothing because of the noise of the other train; that had they then looked north they could not have seen the unlighted car approaching, being prevented by the car standing on track 5, north of the sidewalk, the running train on track 3, the smoke and steam from the engine drawing said train, the darkness of the night, and the absence of light or other signal on the oncoming car.
At the close of the plaintiff’s evidence, which showed the facts substantially as above set out, defendant presented a demurrer thereto, which was overruled. The defendant’s evidence added little, and at its close the court was requested to instruct the jury to return a verdict for the defendant, which instruction was denied. These rulings are here relied on for error.
The railroad company does not deny that it was negligent. Its contention is that it was relieved from the consequences of this negligence by the contributory negligence of the deceased. We are of the opinion that the facts shown clearly prove the culpable negligence of the deceased, and that the company was thereby relieved from liability for their death. They knew the conditions which surrounded them. They Avere in the full possession of their faculties. They [625]*625knew they were within the limits of the yards, with its many tracks. They saw one train occupying the track in front of them. They knew that the other tracks were in frequent use for a like purpose, and that at any moment any one of the other tracks might be occupied by moving cars. They knew that to stand upon a track, or near enough to one to be hit by a moving car, was a dangerous position. Knowing all these things, and being plainly warned that they were in and upon this network of tracks, it was their plainest duty to see to it that they did not halt in a place of danger. There was ample room for them to stop in a place of safety; others did so. Their exposing themselves to this obvious danger can only be accounted for upon the hypothesis of their reckless indifference to the danger which was so apparent and to their own safety.
We find nothing in the facts of this case to distinguish it from Zirkle v. Railway Co., 67 Kan. 77, 72 Pac. 539. The court there said :
“This court has often said that a railroad-track itself is a warning of danger, and that a person about to cross it must keep his faculties of sight and hearing in active exercise. In the present case, the deceased turned his back in the direction from which the danger came, and was absorbed in conversation. His conduct negatived all suggestion of vigilance and showed a negligent disregard of the perils surrounding him. The fact that the freight-train which struck him was standing still on what was called the storage track forty-five feet distant when he started over the crossing was not an assurance that it would remain stationary. The wheels of a railway-car, adapted solely for the purposes of locomotion, are signals that the car may be moved at any time, as the wings of a bird indicate that it is prepared to fly. The indifference shown by the deceased in turning his back toward [626]*626the train which ran upon him, and taking a position on the track, where death or great bodily injury was inevitable if the cars moved to the place where he stood without diverting his attention from the conversation which engaged him, constituted contributory negligence which cannot be excused. If negligence on the part of the company should be conceded, the admission would not avail the plaintiff in error.” (See, also, Libbey v. Railway Co., post, 77 Pac. 541.)
It cannot be that one may place himself upon the track of a railroad, or in such a position as to be hit by a moving car, when no necessity therefor exists, resign himself to listlessness, and then be relieved from the results against which a fairly prudent man ought to guard.
We are of the opinion, upon the entire records, that the jury should have been instructed to return a verdict for the defendant in each case. Therefore, each judgment of the lower court is reversed, with instructions to enter judgment in favor of defendant.
Johnston, C. J., Smith, Greene, Burch, Mason, Atkinson, JJ., concurring.