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

125 P. 64, 87 Kan. 615, 1912 Kan. LEXIS 204

• Court: Supreme Court of Kansas
• Decided: July 6, 1912
• Docket: No. 17,723
• Status: Published

Opinion

The opinion of the court was delivered by

West, J.:

The plaintiff, a brakeman in the employ of the defendant, was, at the time of the, injury, engaged in taking signals from his conductor, who was at the rear of a train fifteen or sixteen cars away, and communicating them to his engineer. It was about 7:40 o’clock P. M. on July 17. He was walking south on the main track on which a passenger train was backing in from the north, the conductor thereof being on the end of the rear car. The jury found, among other things, that when Westine stepped upon the track the passenger train was about one hundred fifty feet .north and was equipped with air and air brakes; that its conductor was on the rear end of the train and in charge of the air brakes and could have seen Westine about one hundred fifty feet before he was struck, and that under the facts and circumstances he could have seen the plaintiff on the track and observed and appreciated that he was unaware of the approach of the train and unconscious of his peril in sufficient time to have stopped the train before striking him; that the conductor could have stopped the train within fifteen feet by the exercise of ordinary care and prudence; that by applying the air on the cab of the engine it could have been stopped within ten feet; that the train which struck the plaintiff dragged him thirty feet. The appellant contends that even with these findings contributory negligence was shown and that the plaintiff could not in law recover. When the case was here before (Westine v. Railway Co., 84 Kan. 213, 114 Pac. 219) it was decided:

• “A question of contributory negligence arising upon the failure of a brakeman to look for an approaching train while actively engaged in giving signals for the movement of his own train, and while giving necessary .attention thereto, is held, under the evidence in this case, to be one of fact, for a jury.” (Syl. ¶ 2.)

It was there said that while the plaintiff knew that the passenger train should come in at about the time of the injury, “it still remained for a jury to determine. whether the plaintiff ought, in the exercise of reasonable prudence, to have looked out for the expected train, in view of the nature of his duties and the importance of attending to the work of removing his own train to the siding, and the dangers to be apprehended.” (p. 221.)

In view of the findings referred to, which were the result of the second trial, the rule already announced' applies even more clearly than before. The judgment is affirmed.