Chicago, Kansas & Western Railroad v. Ransom

[563] The opinion of the court was delivered by Allen, J. : I. The principal contention for the plaintiff in error is that the train on its road, being a mixed freight- and passenger-train, on the older .road, and within its yard limits, was entitled to take the crossing ahead of the freight-train on the Missouri Pacific road; that the engineer brought his train to a full stop at the proper distance from the crossing, gave the customary signal, and started forward, assurqing that the persons in charge of the Missouri Pacific train would concede his right to make the crossing first-; that the engineer and other employees of the plaintiff in error performed all their duties; that the injury is chargeable solely to the neglect of the employees of the Missouri Pacific company, and that it alone is liable for the plaintiff’s injuries. The fallacy of the position of counsel lies in the assumption that the employes of the plaintiff in error had performed their full duty to passengers on their train when they had done everything necessary to entitle them to go ahead over the crossing in advance of the train on the other road, and were absolved thereafter from all duty to look after the safety of the passengers. Persons charged with the conduct of a train carrying passengers are not so lightly relieved of responsibility. No such easy limits to their care can be allowed. It is clear, even from the testimony of the witnesses introduced by the plaintiff in error, that the train on the Missouri Pacific road was in motion at the time the train of the Chicago, Kansas & Western started toward the crossing, and that it did not stop until the collision occurred. This is not a case between the two companies to recover damages to property of one from the other. In such an action, [564] doubtless, the party most at fault could not recover from the other; but in an action by a passenger, it is no defense for one of the defendants to show merely that the fault of the other exceeded its own. It may be freely conceded that the employees of the Missouri Pacific company were negligent, or even more negligent than those of the Chicago, Kansas & Western, without even interposing a serious obstacle in the way of plaintiff’s recovery against both companies. The jury may have regarded it as a want of that high degree of care due to a passenger for the engineer of the Chicago, Kansas & Western to start toward the'crossing when he saw another train in motion toward it, and that he should have waited until he saw that they actually did what he assumed they would do — come to a full stop. They may, and doubtless did, regard it as the duty of the engineer, in case he saw fit to start toward the crossing, to keep close watch of the Missouri Pacific train, and to have stopped his train unless it was clear that he could pass the crossing in safety. None of the special findings negative either of these propositions. The fallacy of the chief contention on behalf of the plaintiff in error being perceived, its special claims are easily disposed of. The petition charges more than a failure to' stop. It charges negligence on the part of those in management of both trains in each attempting to cross ahead of the other, and we think fairly includes their whole conduct in the matter. This case does not rest on a mere presumption of negligence, arising.from the fact that a passenger was injured by a collision, but on testimony clearly showing a want of that measure of care due to a passenger. , It rests on actual proof of- negligence, not because the engineer failed to back his train off the track, as counsel suggest, but because he ran [565] his train into a danger he ought to have foreseen and avoided. II. Error is assigned on the ruling of' the court excluding the rules made by the board of railroad commissioners governing the movements of trains at crossings. We shall assume, though without deciding the question, that the board of commissioners had the power to make such rules, and that the companies, when properly notified of them, would be bound to obey them ; yet we think the ruling of the court, that it was incumbent on the party offering them to first show that the Missouri Pacific Railway Company had been served with a copy of them, or in some manner informed of their provisions, was correct. No attempt was made to make any such showing. The letter by the secretary of the board to the first vice-president of the Missouri Pacific company, informing him of permission granted to another railroad to omit stopping one of its trains at a certain point, is clearly not equivalent to a service-of the rules on the company. These rules were in fact afterward admitted in evidence as a part of the rules governing the employees on the trains of the plaintiff in error. We think there was no error in the ruling of the court. The other claims of error in the admission and rejection of evidence are without force. The error assigned on the instructions is, in substance, the main contention already disposed of, and rests on the claim that the employees of the company might abate their watchfulness, and safely rest on the presumption that the employees of the other company would do everything their duty required them to do. Under the testimony, there is no force in the claim that the damages awarded are excessive. [566] The judgment is affirmed: Johnston, J., concurring. Martin, C. J., having been of counsel, did not sit.