Gaffney v. Atchison, Topeka & Santa Fe Railway Co.

Citations

• 107 Kan. 486
• 192 P. 736
• 1920 Kan. LEXIS 102

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Contributory Negligence — Foreman Killed by Stepping in Front of Moving Train — Failure to Look. An engine foreman having full enjoyment of his faculties of seeing and hearing, in walking in railroad yards, where there were many tracks over which trains and cars were frequently passing, stepped in front of an approaching train that could have been seen by him without difficulty if he had looked, is held to have been guilty of such contributory negligence as bars recovery although the railway company was itself negligent in the running of the train.</p> <p>2. Same — Failure to Look for Approaching Train — Presumptions. * The evidence did not disclose whether the engine foreman looked in the</p> <p>. direction from which the train was coming before going upon the 'railroad track, but as it was his duty to look before putting himself in a place of danger, and as he had the capacity and opportunity to see, it must be presumed that he did see that which was obvious and patent.</p> <p>3. Same — No Inference of Due Care from the Evidence. The presumption arising from the love of life and instinct of self-preservation, that one encountering a peril exercised due care, cannot be indulged in this case where the plaintiff’s own evidence was such as to overthrow the presumption.</p>