Libbey v. Atchison, Topeka & Santa Fe Railway Co.

77 P. 541, 69 Kan. 869, 1904 Kan. LEXIS 375

• Court: Supreme Court of Kansas
• Decided: July 7, 1904
• Docket: No. 13,719
• Status: Published

Opinion

Per Curiam:

John R. Libbey, a railroad conductor, was struck by a moving train in the yards of the Atchison, Topeka & Santa Pe Railway Company, at Emporia, and from the injuries sustained he died. His widow brought this action to recover damages for the negligent act, and to the testimony introduced by her the court sustained a demurrer, holding that her own testimony showed that Lib-bey’s negligence was the proximate cause of the injury.

A reading of the the record satisfies.us that the ruling must be upheld. Assuming that the company was negligent in running its trains through the yards at too rapid a rate of speed, and that no one was on the end of the train as it was backed toward Libbey, the testimony of the plaintiff showed that he, who was talking to a coemployee in the yards, recklessly turned and stepped upon a track and in front of a moving train, without looking in the direction from which the train was coming. He was familiar with the yards and with the fact that two switch-engines were continually moving cars backward and forward through the yards. Although it was night-time, plaintiff’s testimony showed that the cars could have been seen by Libbey for a short distance. He knew the dangers of the place; he voluntarily and unnecessarily put himself into a place of danger; and he took no precaution for his own protection. In stepping upon a railroad-track in front of a moving train without looking or listening, he ignored the plainest dictates of ordinary prudence, and plaintiff’s testimony showed that his negligence directly contributed to. the injury.

The objections to rulings on testimony are not material.

The judgment is affirmed,