Bauer v. Kansas Pacific Railway Co.

Napton, J. The instructions given by the court in this case are obviously based upon the assumption that the road upon which the damage occurred, was a “traveled public road or street,” within the meaning of the 39th section of ax’ticle 2 of our statutes concerning railroad companies. 1 Wag. Stat., p. 310. That section requires not only the ringing of the bell of the locomotive, within eighty rods of such crossing, but it requires sign-boaxils, wffth painted advertisements in capital lettei’S, of “ Railroad Crossing — Look out for the Cars.” The act of 1875, on the same subject, goes further, au8d requix’es planks to be laid and the road to be macadamized. Acts 1875, p. 130. A bare reading of the statute concerning roads and highways, (2 Wag. Stat., p. 1218,) is enough to satisfy any one that the road to the defendant’s depot, on which this accident occurred, is not such a “traveled public x'oad ” as is referred to in the 38th section of the railroad law. Indeed, the court that tried this case seems to have been of that opinion, but to have, also, thought that the statutory rule in x’egard to crossing public x’oads might, with jxropriety- and by analogy, l;e applied to the cx’ossing of a road not public, within the statutory definition, but made public by the consent of the railroad company. lienee, the coui’t, in the second instruction for plaintiff, recited the statute, [223] and declaring it applicable to all railroad companies passing through incorporated cities, applied it directly to defendant, and based the first instruction entirely on the ground of a failure to ring the bell within eighty rods of this crossing, provided the jury were satisfied that this road was used as .a public road by consent of defendant. The 38th section of our statute had, in reality, nothing to do with the case. It did not fall within its provisions, nor within any other provision of the statute which we have been able to find. Who was responsible for the damage depended on common law principles, there being no statute relating to the case. If the railroad company was guilty of negligence, which occasioned the injury, without negligence on the part of plaintiff, it was clearly responsible. That negligence might consist in not ringing abell or sounding a whistle, or in allowing an unnecessary accumulation of cars on its side-track to intercept a view of an approaching train, or in failing to use any other precaution which it was its duty to provide. The question is simply whether the defendant was guilty of’ negligence, and of this the jury are the judges. There is no statutory, regulation on the subject. In regard to contributory negligence on the part of the plaintiff, it is likewise a question for the jury. Whether the plaintiff ought, under the circumstances, to have gotten out of his wagon, or stood up on it in approaching the crossing, is a question for the jury. If he was guilty of contributory negligence he was, of course, not entitled to recover. It is unnecessary to notice the. instructions in detail. The judgment must be reversed and the cause remanded. Judge Sherwood absent. Reversed.