Atchison, Topeka & Santa Fe Railroad v. Henry

*160 The opinion of the court was delivered by

Martin, C. J. :

1. Duty of company a crossings. I. The court correctly ruled that the highway was legally established, and this was prior to the construction of the railroad. It was therefore the duty of the company to restore the highway “ to its former state, or to such state as to have not necessarily impaired its usefulness," and also to construct and keep in repair “ a good and substantial crosssing, by securing on each side of each rail a board not less than 12 feet long, and not less than 10 inches wide and two inches thick, and . . . fill the space between the two inside boards with gravel or broken stones, or . . . floor the space with boards not less than two inches thick and 12 feet long." (¶ ¶ 1207, 1262, Gen. Stat. 1889.) These statutory provisions were under consideration by this court in M. K. & T. Rly. Co. v. Long, 27 Kan. 684, and A. T. & S. F. Rld. Co. v. Miller, 39 id. 419, but this case presents questions not raised in either. It seems probable that the jury interpreted the additional instruction as authorizing them to find that it was the duty of the railroad company to plank the crossing the full width of the highway in order that it might be restored to its former state of usefulness. We think the clause cited from paragraph 1207 means that the company must so restore the highway that its use by the public shall not be materially interfered with, nor the highway be rendered less safe and convenient to persons, vehicles, and teams passing over it, except so far as diminished safety and convenience are inseparable from any crossing of the highway by a railroad; and whether this requirement is fulfilled in any particular case is a question of fact *161 for the jury to determine, upon' the evidence under proper instructions. It is unusual, and generally unnecessary, to construct such crossings of the full width of a country road, although it''may be requisite as to some of the streets in a city. The location of the crossing, whether in a city or- other populous district or in the country, the extent of the use of the highway, the expense of the work, and otl^er circumstances may properly be considered in deciding whether the duty of the railroad company has been discharged or not. So, also, a crossing adequate wíien built may, by the growth of business, or change iii the width or character of the vehicles used -or -drawn upon it, become inadequate for the public, accommodation. In such case it is the duty of the railway company to widen the crossing so as to be reasonably safe for the increased traffic and the widened ^vehicles drawn in the usual and proper manner. The planks used for this crossing were longer, wider', and thicker than the minimum requirement of said ‘paragraph 1262, and yet it seems that the crossing was not wide enough for the harvester-binder to pass over in safety when drawn by three horses abreast. It is necessary to go upon the highways for the purpose of taking farm machinery from one place to another, and railroad companies must take notice of this, and widen their crossings, when necessary for the public convenience. The evidence does not show whether'the machine in question was of unusual width or not, and, if its width was exceptional, and it was an uncommon occurrence for a vehicle or'machine requiring so much breadth of crossing for its accommodation when drawn in the usual manner, it would be unfair to charge the railroad company with notice that a crossing of greater width was necessary. These principles *162 are deducible from numerous authorities. (Elliott, Roads and Streets, 599, 600; State v. St. P. M. & M. Rly. Co., 35 Minn. 131, 135; Roberts v. Chicago & N. W. Rly. Co., 35 Wis. 679; The People v. N. Y. N. H. & H. Rld. Co., 89 N. Y. 266, 270; Cooke v. Boston & L. Rld., 133 Mass. 185; Wellcome v. Inhabitants of Leeds, 51 Me. 313; Manley v. St. Helens C. & R., 2 Hurl. & N. 840.) In the following cases railroad companies have been held liable for defective crossings: Wasmer v. D. L. & W. Rld. Co., 80 N. Y. 212; Payne v. Troy & B. Rld. Co., 83 N. Y. 572; P. F. W. & C. Rly. Co. v. Dunn, 56 Pa. St. 280; I. & St. L. Rld. Co. v. Stout, 53 Ind. 143; O’Connor v. Boston & L. Rld., 135 Mass. 352. The instructions of the court, however, as probably understood by the jury, left no middle ground for the requirement as to the crossing between that existing and one the full width of the highway, and in this we hold that the court erred.

2. Comparative and gross negligence. II. Instructions 7 and 10 were erroneous as originally given, the doctrine of comparative negligence not obtaining in this court. All reference to gross negligence in the instructions should have been omitted, unless as applied to the failure of McDonald to set the brakes. It is true that many of the ties west of the crossing were rotten, yet it is hardly possible that the engine would have held to the rails or remained upright if they had been sound. The strain upon the track caused by the collision with the -machine was so great that either the rails or the ties were almost sure to give way, and such an unusual event could not have reasonably been within the contemplation of the railroad company. It may be that, if McDonald had set the brakes when the signal was given, the force of the collision would have been lessened to the extent of *163 preventing the derailment and overturning of the engine ; but even this is improbable, for the application of the air-brake on the engine and tender and of the hand-brake upon the coach seemed to have retarded the speed of the train only about three miles per hour, according to the evidence. The primary cause of the casualty was the obstruction of'the track by the machine, and if the railroad company did not exercise ordinary care in having a crossing at that point wide enough for the accommodation of such vehicles as might be reasonably expected upon the highway, and the injury complained of resulted therefrom, then the company is liable. The, negligence of McDonald, or the failure of the company to have a better track, or both, would be sufficient to justify a recovery if the injury were directly traceable* thereto ; but the evidence adduced seems to us insufficient to warrant a recovery upon either or both of those grounds.

3. Duty of engineer to save himself. III. As the case must, be tried again, we think it best to refer to some other questions, whether raised by the petition in error or not. We think that instructions 30 and 41, respectively, should not have been givén. It would be exacting more . than ordinary care oí an engineer to require him to decide'at his peril whether a crossing was sufficient for the use of all vehicles that might pass upon the highway, or even to know whether the track over which he was running was sufficient to endure an extraordinary strain upon it; and whether he should have jumped from the engine-should not be made to depend upon his own safety in so doing. The safety of the crew and the passengers, on board should be of first importance in the mind of' an engineer, and the highest considerations of duty may require him to remain at his post to the last ex *164 tremity. Hemy may have supposed that the collision would result in throwing the machine from the track, and that his engine would hold fast to it. But it should have been left to the jury to determine whether under all the circumstances it was negligence on the part of the engineer to remain on his engine. This court held, in Condiff v. K.C. Ft. S. & G. Rld. Co., 45 Kan. 256, 261, that when the exposure is for the purpose of saving human life, it is for the jury to say, from all the circumstances of the case, whether the conduct of the person injured is to be deemed rash and reckless. See, also, as to an engineer remaining at his post: Cottrill v. C. M. & St. P. Rly. Co., 47 Wis. 634, 638; Central Rld. Co. v. Crosby, 74 Ga. 738, 748; The Pennsylvania Co. v. Roney, Adm’x, 89 Ind. 453, 455.

Stredder was allowed to testify to his opinion as to the safety of the crossing, and said that he considered it, like other railroad crossings through the country, too narrow for safety, and the court refused to strike out his answer on the ground of incompetency. It was a question for the jury to determine as to the sufficiency of the crossing, after being informed of its width and of the character of the vehicles passing over it as usually drawn, and opinion evidence as to its safety was incompetent.

Many of the questions submitted to the jury were leading and negative in form, and others grouped together several questions in one. These faults should be avoided hereafter. .

For the several errors referred to, the judgment will be reversed, and the cause remanded for a new trial.

All the Justices concurring.