The opinion of the court was delivered by
Johnston, J.:
1. arermmte sioií-Sbírai mteipreta It is an unusual practice to dispose of a case upon the petition and meager statements such as were made by counsel for the plaintiffs. It seems that the court was proceeding to determine the sufficiency of the petition upon objection to the admission of any testimony, and was inclined to hold that its averments showed contributory negligence on the part of the deceased, under the rule in the case of Howard v. K. C. Ft. S. & G. Rld. Co , 41 Kas. 403, when a colloquy ensued between court and counsel for plaintiffs as to the inferences that were to be drawn from the allegations of the petition, and at that time some statements or admissions were made by counsel for plaintiffs. The court took case from the jury, holding that, under the averments of the petition and the admissionsjust f.jjen made, no recovery could be had. Under those circumstances, the averments and claims of the plaintiffs should receive a liberal interpretation in their favor, and looking at them in that view, we think the ruling of the court cannot be sustained.
The petition alleges negligence on the part of the company in placing three cars and a caboose across a public street of the city, in violation of an ordinance, where they were allowed to remain for more than an hour before the injury occurred; that while Myrtle G. Weber1, an infant of 16 years, was attempting to cross the tracks at the crossing of the street, the company, in violation of another city ordinance, backed a locomotive and train of cars rapidly down the track, without any lights, signals or warnings of any kind, against the three cars and the caboose standing across the street, with great violence, striking Myrtle and knocking her down, by reason of which, and without any fault or neglect on her part, she was crushed and mangled in such a way that her death resulted from the injuries about three days later. From the admis[399]*399sions made, it appears that the cars standing across the street were not attached to any locomotive, and no one was in charge of them, and although it was night there was no light in the caboose nor on or about any of the cars. When Myrtle and those with her approached the crossing, on their way to church, they found the street obstructed, and the steps and platform of the caboose, which adjoined one of the freight cars, were in line with the street. Myrtle then started across the steps and platform of the caboose, when she was thrown off and under the wheels, in the manner alleged. Daylight had gone, but how dark the night was does not appear. When she attempted to cross, the locomotive and cars attached to it, which were subsequently backed down against the detached cars, could not be seen, and how far they could have been seen with an unobstructed view on that night is not shown.
The remarks of the court when the decision was made indicate that the rule of the Howard case was deemed to be applicable and' controlling in this. There, however, as will be seen, the injury resulted from jumping off a car on which the woman had climbed, and no act of the railroad company was the proximate cause of her injury. It is generally held that those who climb over or under a train, the locomotive of which is steamed up and apparently ready to move, do so at their peril; the same rule applies with respect to those who attempt to cross over the bumpers or couplings between the cars of a freight train in like condition; and this is upon the principle that those who voluntarily assume a position so obviously dangerous cannot complain of injuries received while in such position. The crossing, however, upon the steps and platform of a caboose or passenger car, detached from the engine or from the train, and when there are no indications of a removal, is hardly parallel with a crossing made over or under a train which has made a temporary stop, and, in the nature of things, will soon be moved. In this instance the detached cars had stood for a long time upon the street, and who could tell when they would be moved, or whether [400]*400they would be moved at all during the night? So far as shown, there was nothing to indicate that they were soon to be attached to or put into a train. Taking the record as it is, there was no light in or upon them, no one was present who had charge of them, and no train or locomotive was seen approaching to connect with them.
3. Sgon street warnings.an¿ The steps and platform of the caboose were in range with the walk upon the street along which Myrtle was passing, and they were provided as a safe and suitable means for entering and leaving the caboose. They afforded a passage across the train which under some circumstances would be reasonably safe, while under others an attempt to cross thereon would be necessarily perilous. She was entitled to the use of the street, and while the negligence of the company in blockading it may not have been the proximate cause of the injury, it cannot be said that the company was free from negligence in the manner in which it approached and collided with the detached cars which stood over the street. The cars having stood for so long a time over a street in common use, it was the duty of those in charge of the approaching train to give proper signals and warnings of its approach, s0 th°se upon the street who might be near the train should have an opportunity to get out of danger. Instead of giving such signals or warnings, it is stated that the train was rapidly backed down, with no lights or signals of any kind, and no brakeman or guard on the rear of the train, to notify persons upon the crossing of its approach. It is stated that it was run down at a very rapid rate of speed in the manner indicated, in violation of a city ordinance regulating the movement of trains within the limits of the city. It is certain that the allegations are sufficient to charge negligence in the company, and the question is whether, under the averments of the petition and the meager statement of facts brought to the attention of the court, it can be said as a matter of law that the deceased was guilty of contributory negligence in attempting to cross. The general rule is, that when the question of contributory [401]*401negligence depends upon circumstances from which different minds might arrive at different conclusions, the question should be submitted to a jury, under proper instructions.
How can it be said, in the light of the surrounding circumstances, that the danger in attempting to cross the track in the manner in which she did was so obvious that a person of ordinary prudence would not have made the attempt? If an unobstructed view of the track could have been had, and if she stopped and carefully looked and listened for the approach of the train, and none was seen or heard, and then she ventured to pass over the steps and platform, can it be said as a matter of law that she was guilty of contributory negligence? It is said that she was an infant, and how capable and well developed she may have been was not brought out in the running talk which occurred between the court and counsel just before the case was dismissed. In view of the allegation that she was not negligent, and in the absence of any statement to the court to the contrary, we may assume that she did exercise care before' attempting to cross, and did stop, look, and listen for the approach of a train on the track whereon the detached cars were standing. It is not always held to be negligence to pass around or between detached cars standing upon a street.
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The opinion of the court was delivered by
Johnston, J.:
1. arermmte sioií-Sbírai mteipreta It is an unusual practice to dispose of a case upon the petition and meager statements such as were made by counsel for the plaintiffs. It seems that the court was proceeding to determine the sufficiency of the petition upon objection to the admission of any testimony, and was inclined to hold that its averments showed contributory negligence on the part of the deceased, under the rule in the case of Howard v. K. C. Ft. S. & G. Rld. Co , 41 Kas. 403, when a colloquy ensued between court and counsel for plaintiffs as to the inferences that were to be drawn from the allegations of the petition, and at that time some statements or admissions were made by counsel for plaintiffs. The court took case from the jury, holding that, under the averments of the petition and the admissionsjust f.jjen made, no recovery could be had. Under those circumstances, the averments and claims of the plaintiffs should receive a liberal interpretation in their favor, and looking at them in that view, we think the ruling of the court cannot be sustained.
The petition alleges negligence on the part of the company in placing three cars and a caboose across a public street of the city, in violation of an ordinance, where they were allowed to remain for more than an hour before the injury occurred; that while Myrtle G. Weber1, an infant of 16 years, was attempting to cross the tracks at the crossing of the street, the company, in violation of another city ordinance, backed a locomotive and train of cars rapidly down the track, without any lights, signals or warnings of any kind, against the three cars and the caboose standing across the street, with great violence, striking Myrtle and knocking her down, by reason of which, and without any fault or neglect on her part, she was crushed and mangled in such a way that her death resulted from the injuries about three days later. From the admis[399]*399sions made, it appears that the cars standing across the street were not attached to any locomotive, and no one was in charge of them, and although it was night there was no light in the caboose nor on or about any of the cars. When Myrtle and those with her approached the crossing, on their way to church, they found the street obstructed, and the steps and platform of the caboose, which adjoined one of the freight cars, were in line with the street. Myrtle then started across the steps and platform of the caboose, when she was thrown off and under the wheels, in the manner alleged. Daylight had gone, but how dark the night was does not appear. When she attempted to cross, the locomotive and cars attached to it, which were subsequently backed down against the detached cars, could not be seen, and how far they could have been seen with an unobstructed view on that night is not shown.
The remarks of the court when the decision was made indicate that the rule of the Howard case was deemed to be applicable and' controlling in this. There, however, as will be seen, the injury resulted from jumping off a car on which the woman had climbed, and no act of the railroad company was the proximate cause of her injury. It is generally held that those who climb over or under a train, the locomotive of which is steamed up and apparently ready to move, do so at their peril; the same rule applies with respect to those who attempt to cross over the bumpers or couplings between the cars of a freight train in like condition; and this is upon the principle that those who voluntarily assume a position so obviously dangerous cannot complain of injuries received while in such position. The crossing, however, upon the steps and platform of a caboose or passenger car, detached from the engine or from the train, and when there are no indications of a removal, is hardly parallel with a crossing made over or under a train which has made a temporary stop, and, in the nature of things, will soon be moved. In this instance the detached cars had stood for a long time upon the street, and who could tell when they would be moved, or whether [400]*400they would be moved at all during the night? So far as shown, there was nothing to indicate that they were soon to be attached to or put into a train. Taking the record as it is, there was no light in or upon them, no one was present who had charge of them, and no train or locomotive was seen approaching to connect with them.
3. Sgon street warnings.an¿ The steps and platform of the caboose were in range with the walk upon the street along which Myrtle was passing, and they were provided as a safe and suitable means for entering and leaving the caboose. They afforded a passage across the train which under some circumstances would be reasonably safe, while under others an attempt to cross thereon would be necessarily perilous. She was entitled to the use of the street, and while the negligence of the company in blockading it may not have been the proximate cause of the injury, it cannot be said that the company was free from negligence in the manner in which it approached and collided with the detached cars which stood over the street. The cars having stood for so long a time over a street in common use, it was the duty of those in charge of the approaching train to give proper signals and warnings of its approach, s0 th°se upon the street who might be near the train should have an opportunity to get out of danger. Instead of giving such signals or warnings, it is stated that the train was rapidly backed down, with no lights or signals of any kind, and no brakeman or guard on the rear of the train, to notify persons upon the crossing of its approach. It is stated that it was run down at a very rapid rate of speed in the manner indicated, in violation of a city ordinance regulating the movement of trains within the limits of the city. It is certain that the allegations are sufficient to charge negligence in the company, and the question is whether, under the averments of the petition and the meager statement of facts brought to the attention of the court, it can be said as a matter of law that the deceased was guilty of contributory negligence in attempting to cross. The general rule is, that when the question of contributory [401]*401negligence depends upon circumstances from which different minds might arrive at different conclusions, the question should be submitted to a jury, under proper instructions.
How can it be said, in the light of the surrounding circumstances, that the danger in attempting to cross the track in the manner in which she did was so obvious that a person of ordinary prudence would not have made the attempt? If an unobstructed view of the track could have been had, and if she stopped and carefully looked and listened for the approach of the train, and none was seen or heard, and then she ventured to pass over the steps and platform, can it be said as a matter of law that she was guilty of contributory negligence? It is said that she was an infant, and how capable and well developed she may have been was not brought out in the running talk which occurred between the court and counsel just before the case was dismissed. In view of the allegation that she was not negligent, and in the absence of any statement to the court to the contrary, we may assume that she did exercise care before' attempting to cross, and did stop, look, and listen for the approach of a train on the track whereon the detached cars were standing. It is not always held to be negligence to pass around or between detached cars standing upon a street. In every case the question is, whether there is such an obvious danger and such a probability of injury as would deter a reasonably prudent person from assuming the risk of passing through or around such cars. If the risk is great, and such as a prudent person would not assume, then one who assumes the risk is guilty of negligence which will preclude a recovery for any injury suffered. Under the circumstances of this case, how can it be said that there would have been any less risk in going behind or around the caboose than over the steps and platform which were intended for the use of people in entering and leaving such caboose?
Of course, a high degree of care is required of one who attempts to cross over or around cars standing upon a street, and if a person attempts to cross when there is an obvious [402]*402danger that the train will be moved at any time, he is guilty of negligence. If Myrtle knew or should have known that these cars were part of a train which had been broken in two, and that one part would -soon be backed up and united with the other, and if she then ventured to cross the street without looking along the track to see whether the locomotive and other cars were coming, or if her view was obscured by obstructions or darkness so that she could not see the approach of such a train, and then attempted to cross without taking any care to learn that there was a present danger in crossing, she would be guilty of negligence in making the attempt. The cars, however, as we have seen, were detached, at a standstill, and, so far as we can see, there were no indications to Myrtle that the cars would be moved before she could effect a passage over the platform and steps in safety.
2. Sg-oumbing" tributary neg-It is true that the position of the cars on the street would ordinarily give rise to the inference that they would be moved, but how soon they would be set in motion was not apparent, and the question is whether, in view of the special circumstances of the case, she exercised reasonable care in attempting to cross. We are unwilling to say that her conduct was contributory negligence per se, and -while there is doubt or plaintiffs right or recovery, we think, under the circumstances, that it is such a case as should be left to a jury. Submitted as this case was, the averments and statements of the plaintiffs should be given the most favorable consideration they will reasonably bear. Taking them in that way, we think the dismissal of the case was error.
Some question is raised as to whether all the admissions are contained in the record, but, as recited there, it is evident that all upon which the court acted are contained in the record. The judgment of the district court will be reversed, and the cause remanded for another trial.
All the Justices concurring.