Kansas City, Fort Scott & Gulf Railroad v. Hines

The opinion of the court was delivered by Valentine, J.: This case has once before been to this court. (K. C. Ft. S. & G. Rld. Co. v. Hines, 29 Kas. 695.) When the case was returned to the district court it was again tried by the court and a jury, and judgment was again rendered in favor of the plaintiff, Hines, and against the defendant railroad company; and the defendant, as plaintiff in error, again complains. On the second trial of the case in the district court the same agreed statement of facts was introduced in evidence as on the first trial, and such other evidence was introduced as the plaintiff chose to introduce. The- defendant did not choose to introduce any evidence, but submitted the case upon the plaintiff’s evidence. The action was for alleged injuries by the defendant to the plaintiff’s cow. The evidence tended to prove that the cow was standing upon the railroad track, in plain view of an approaching train; that she could have been seen by those in charge of the train 800 feet before the engine reached the place where she stood; that the train was moving at the rate of about ten miles, per hour; that it could have been stopped within 600 feet; but that it was not [628] stopped nor even slacked in its motion, and the whistle was not sounded; but the train moved on, and when the engine approached to within about 15 feet of the cow, she attempted to escape, and ran along the track about 30 feet, when the engine overtook her and struck her on the left hip, throwing her from the track, and causing the injuries for which the plaintiff sued. The jury found a general verdict in favor of the plaintiff and against the defendant, and also found that the defendant was guilty of negligence in not giving “the customary signals” and in not “slowing up” the train. We think the evidence tended to prove negligence, and therefore that it cannot be said that the verdict of the jury is wrong. There was no conflicting evidence. With reference to the points made by counsel for plaintiff in error, defendant below, we would say: 1. As to their point “a,” see the case of Stewart v. M.A. & B. Railroad Co., 27 Kas. 631. 2. As to their point “ 6,” the trial court was not asked to charge the jury with reference to the question of contributory negligence, nor was the evidence such as to require the court to so charge. 3. As to their point “ c,” the evidence does tend to prove negligence. 4. As to their point “d” the testimony of Lucas and Iiulbert was not in any manner erroneously prejudicial to the substantial rights of the defendant. A part of it may have been immaterial in the case, and another part may have been unnecessary, as the court might have taken judicial notice of the facts testified to without proof. We think that a court may take judicial notice that it is generally the duty of the employés of a railroad company in charge of a moving train to sound the whistle whenever stock is on the track in front of the train, and also to slacken the speed of the train, or even stop it, if necessary and practicable, to avoid coming in contact with the stock. The rest of the testimony of said witnesses was competent and proper. The judgment of the court below will be affirmed. All the Justices concurring.