Allen v. Missouri Pacific Railway Co.

Citations

• 104 Kan. 23
• 178 P. 395
• 1919 Kan. LEXIS 177

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroad Sidetracks. — Written Contract for their Use — No Corromunity of Interest Created — Instructions. Plantiff’s husband, who was an officer and employee of an industrial plant, was killed while attempting to pass between two cars standing on a sidetrack when a string of cars were coupled against them. The sidetrack had been maintained for many years under a contract between the owner of the industrial plant and certain railway companies by which the owner of the industrial plant granted to the railways a free and unincumbered right of way for the track, and agreed that the railway companies should have the right to use the track for their own business or for the business of any other person or shipper. The track was afterwards extended by the railway companies and served a number of other industrial plants, and was used in connection with the state and interstate business of the railway companies. Held, that it was error to instruct that under these circumstances the railway companies and the owner or lessee of the industrial plant had a community of interest in the sidetrack and were in the joint occupancy of the ground on which the track was laid.</p> <p>2. Same — No Community of Interest Acquired by Continued Trespassing. In such a case it is error to instruct that if the deceased and his fellow officers and employees and others having business with the industrial plant “made frequent use of the ground on which said track lay, in passing to and from said building through the doors in the west side thereof, which were in close proximity to said sidetrack, and that this practice had continued for several years,” then the railway companies and the owner or lessee of the industrial plant had a community of interest in the sidetrack and were in the joint occupancy of the ground on which the track was laid, and the railway companies were under an obligation to such officers and employees to exercise ordinary care to avoid injur