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

Citations

• 84 Kan. 224
• 114 P. 198
• 1911 Kan. LEXIS 309

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads- — Duty to Give Warning to Shippers Walking in the Yards. Evidence that at a railroad station where cattle in shipment were frequently detained at night it was customary for persons accompanying live stock in transit to walk back and forth over the yards, between their cars and the depot, is sufficient to justify a finding that the company owed a duty to such persons so engaged to give a warning of the approach of a train.</p> <p>2. Contributory Negligence — Shipper Injured, While Walking in Railroad Yards. One who is accompanying live stock in shipment, and has occasion to walk at night between his train and a depot, can not be said as a matter of law to be guilty of negligence if in attempting to walk in the safe space between two tracks he inadvertently gets close enough to one of them so that he is struck by an approaching train.</p> <p>3. - Failure of Shipper to Carry a Lantern, as Required by His Contract. Where under such circumstances a shipper is killed by being struck while walking near a track, by a . freight train running backward without a sufficient watch being maintained at the rear, and without a whistle or bell being sounded, the fact that he was not carrying a lantern, although his shipping contract required him to do so, does not as a matter of law bar a recovery of damages on account of his death, since it does not conclusively prove that if he had carried a lantern he would have escaped injury.</p> <p>4. Evidence — Testimonial Knowledge of Witness — “I Think.” The ordinary presumption is that a witness who uses the expression “I think” means that his observation was indistinct or his recollection uncertain regarding the matter testified to, rather than that he is without personal information on the subject.</p>