Atchison, Topeka & Santa Fe Railroad v. Powers

Allen, J. ' limited to issues presented. Objections a,re made to the consideration of the errors alleged in this case on the ground that the specifications in the brief for the plaintiff in error are insufficient; but the objection appears to be without merit. The objection, also urged, that the case-made fails to show that it contains all the evidence- and instructions, is equally untenable. The specific negligence charged in the petition relates entirely to the operation and management of the train which caused the death of the plaintiff's intestate. It was not charged that it was the duty of the Railroad Company to put in sates, or stax j x 0 tion a flagman, at this crossing. Yet the court, in its general charge, directed the jury that it was for them to determine whether the Railroad Company did all that was reasonable to protect people-on the highway from danger, and that they might come to the conclusion “ that it should have put in gates, or placed flagmen, or whatever else,” and if it did not do. what the jury regarded as necessary under the circumstances it would be negligent. This was erroneous, under the pleadings and the evidence. The fourth instruction asked by the .plaintiff and given, is defective in that it fails to confine the jury [550] to the specific negligence charged in the petition, and also omits all reference to contributory negligence on the part of Mrs. Lamsdale. While the answer of the defendant does not chai’ge contributory negligence, the plaintiff's petition alleges that Mrs. Lamsdale was killed by reason of the negligence of the defendant, and without any fault or negligence on her own part; and the case was tried as though contributory negligence on her part 'was an issue in the case. Under these circumstances, we think it was incumbent on the court to correctly charge the jury with reference to the duty resting on Mrs. Lamsdale to take due precautions for her own safety, and the legal effect of her failure to do so. 2. Whether certain ío?yn°eKiigraee, forjnry. The fifth instruction asked by the plaintiff and given, is especially erroneous, and on it a reversal of the judgment is mainly based. The jury were there told that, when approaching a crossing rendered peculiarly dangerous by the lay of the ground, which obscured the view of the track, “it was not the duty of said decedent, nor of any of those in the wagon with her, to have stopped before passing, or attempting to pass, over the crossing, unless by some means those in the wagon had actual knowledge of the approach of the train in time to have avoided the collision by the use of such diligence as should reasonably have been expected of persons so situated.'' Whether or not, they ought, under the circum7 J o’ stances, to have stopped, and what precautions they ought to have taken to ascertain whether a train was approaching, were for the jury to determine. C. R. I. & P. Rly. Co. v. Williams, 56 Kan. 333. While it was incumbent on the Railroad Company to use care commensurate with the peculiar dangers of the crossing, in order to avoid accident, it was equally incumbent on the persons [551] crossing the track to care for their own safety, and to bo vigilant in avoiding any train which might be passing on the railroad. Complaint is also made of the refusal of the court to instruct that any negligence on the part of the driver should be imputed to the plaintiff; but in this we find no error. City of Leavenworth v. Hatch, 57 Kan. 57; Reading Township v. Telfer, 57 id. 798. For the errors in the instructions given, the judgment must be reversed and the cause remanded for a new trial.