McClelland v. Missouri Pacific Railway Co.

Citations

• 82 Kan. 167
• 107 P. 545

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>Personal Injuries — Accidental Injury to One Driving Over Temporary Railway Crossing — Defendant Not Negligent. The plaintiff was driving along a highway with a load of hay, and came to a railway crossing. The railway company was engaged at the time in repairing its track and roadbed, and had taken np the crossing and raised the rails several inches. The plaintiff stopped his team, got down from the wagon, went to the crossing, and talked with the foreman in charge of the work. The forerfian said he would have the crossing ready for him in a few minutes, and the section men, under the direction of the foreman, put back the crossing boards and threw in some dirt. The foreman then said to the plaintiff: “The crossing is ready for you; do you think you can cross?” The plaintiff said he thought he could. In attempting to drive over the temporary crossing the load of hay was overturned and the plaintiff was injured. Held, in an action to recover damages, that in using the temporary crossing which had been placed there for his use the plaintiff acted upon his own judgment, with full knowledge of its condition, and that there was no negligence on the part of the railway company which would entitle him to recover.</p>