Atchison, Topeka & Santa Fé Railroad v. Hawkins

The opinion of the court was delivered by Horton, C. J.: The errors alleged as grounds for reversal are, that the court erred in its instructions to the jury upon the question of the defendant’s allowing and permitting a hedge to grow upon its right-of-way, thereby obstructing the view. The instructions objected to are as follows: “2. It is averred in the petition that plaintiff’s said two cows were struck and killed by one of defendant’s trains ona its railroad while said cows were being driven along a public road, and at a crossing of said railroad; that the killing of said cows was caused by the negligence of the defendant and its agents and servants, in permitting a hedge to stand upon its right-of-way so as to prevent the approach of its said train [358] from being seen, and by failing to sound the whistle of its locomotive, so as to give warning of the coming of its train.” “6. The jury are instructed that if you believe from the evidence that the defendant company permitted and suffered a hedge to stand upon its right-of-way so as to obstruct materially the view of the track, and of approaching trains by persons about to cross the railroad, on the crossing in question, and that but for such obstruction the injury in question would not have happened, then the company is liable in this case for the injury so caused, unless you further believe from the evidence that plaintiff’s own negligence contributed directly to the injury.” The court also, at the request of the railroad company, submitted certain questions of fact to the jury. The eleventh and twelfth questions and answers are as follows: “11. Did the person in charge of these cows take any precautions as she approached this crossing, to ascertain whether any 'train was coming or not, prior to letting the cattle get upon the crossing ? A. Yes. “12. If the jury answer the last question affirmatively they may state fully what acts the person in charge of the cattle did toward ascertaining, or what steps she took to find out whether a train was coming or not. State fully. A. We believe that she took the same precaution that she did in always crossing, by listening and looking as far as she could; the defendant being behind-time with its train, it was as much the defendant’s place to use an extra precaution on the part of the train, being off time, to give an extra signal. Furthermore, the defendant was negligent in leaving the hedge in the condition it was to prevent the seeing or hearing the approach of the train.” It is claimed that the jury in these answers required of the defendant, under the circumstances, a duty not shown by the evidence, and that by reason of that fact the motion for a new trial ought to have been granted. It seems to us that this case was decided by the jury upon the ground that the railroad company was negligent in permitting a hedge to be grown upon its right-of-way so as to obstruct materially the view of its track and approaching trains, and not upon anything else. An instruction was given imputing negligence to the railroad [359] company on account of the hedge upon its right-of-way, and the jury specially found the company was negligent in leaving the hedge in the condition it was in. All the evidence shows that both the plaintiff and his daughter, who was in charge of the stock, were well acquainted with the crossing, and knew of the hedge, its height, and its condition. The hedge was from fifteen to twenty-five feet on the right-of-way, and twenty-five to thirty-five from the track. If the hedge in any way prevented the person in charge of the stock from seeing or hearing the approaching train, then, of course, being well acquainted with the hedge and the premises, additional precaution should have been taken to see whether any train was coming. We think the instruction concerning the hedge upon the right-of-way was misleading, and that the verdict was returned upon a wrong theory. If the growing of a high hedge upon a right-of-way near a public crossing is negligence on the part of the railroad company as to a traveler or person upon a public highway, and thoroughly familiar with the hedge, the crossing, and adjoining premises, then also a high fence inclosing a railroad track would be an act of negligence on the part of the company, and permitting trees to grow upon the right-of-way near a public crossing would also be negligence. If the jury had based the verdict upon the failure of the railroad company to sound the whistle of its locomotive as prescribed by the statute, the testimony concerning the hedge would not have been erroneous, nor affected prejudicially the case. The bill of particulars expressly alleged that “if the whistle had been sounded as prescribed by law, the person in charge of the stock could have prevented the injury.” Yet under the instructions of the court the jury were permitted to return a verdict against the company without regard to whether the whistle sounded, or not. The jury made a great many special findings, but they made no finding, however, that there was any failure of the company to sound the whistle to its locomotive. In addition, the jury specially found that the person driving the stock was on horseback; therefore she.might, [360] as she approached the crossing, have ridden ahead of the stock and ascertained whether any train was coming, before she started the stock across the track. The judgment of the district court will be reversed. Valentine, J., concurring. Johnston, J., dissenting.