
    Joseph Limb et ux. v. The Kansas City, Fort Scott & Memphis Railroad Company.
    No. 14,352.
    (84 Pac. 136.)
    SYLLABUS BY THE COURT.
    
      Railroads — Injury to Trespasser — Contributory Negligence. A person who for his own convenience walks on the main track of a railroad, and does not look or listen, or take any precaution for his own safety, and while so walking is injured, is guilty of contributory negligence which will bar a recovery of damages for such injury.
    Error from Cherokee district court; William B. Glasse, judge.
    Opinion filed March 10, 1906.
    Affirmed.
    
      Blue & Hamilton, and H. A. Forkner, for plaintiffs, in error.
    
      L. F. Parker, and Pratt, Dana & Black, for defendant in error.
   The opinion of the court was delivered by

Graves, J.:

About March 28, 1900, David Limb, a. boy about sixteen years of age, was run over and killed by. the cars of the defendant in error, at the town of Scammon, in Cherokee county, Kansas. Joseph Limb and Annie Limb, the parents of the deceased, brought, this action, August 3, 1900, in the district court of that, county, to recover damages suffered by them on account of the loss of their son. At the trial a demurrer to the evidence was sustained, and a judgment entered for the defendant: The plaintiffs excepted, and bring the case here, assigning this order and judgment of the district court as error.

The facts may be briefly stated, as follow: Scammon is a small mining village located on both sides of the defendant’s railroad. Coal-mines are on the east side of the track. Many of the miners live on the west side thereof. The miners, in going to and from their-work, and school children and other citizens have for many years crossed over the railroad-tracks and right of way freely and promiscuously, resulting in paths having become worn in many places. No objection had been made by the defendant to this use of its .grounds.

David Limb, the deceased, lived in the west part of town, and had been at work in the mines about four years prior to his death, during which time he passed -over and across the railroad-tracks and grounds at his convenience. The depot was situated between the main track on the west and the switch, or house-track, on the east. These two tracks came together about 700 feet south of the depot.

About twenty feet south of the depot platform was a crossing over the main track. Between the house- and main tracks was a traveled pathway extending from a street, which crossed the railroad south of the switch, and ran north to this crossing near the depot. It was convenient for the miners who lived west of the railroad to come from their work up the traveled path between the two ‘tracks to the crossing near the depot and then cross over the main traclj. There was nothing, however, to prevent them from crossing at any place. About two o’clock in the afternoon of the day of the injury David Limb walked up from the south between the two tracks, near the main track, apparently intending to cross at the crossing near the depot. While so traveling a freight-train came in from the south and passed him. While the train was passing the caboose and a box car were detached from the moving train, but followed after by reason of the momentum acquired before they were detached. The front end of the train passed north beyond the depot. When it passed the deceased the caboose and box car were a short distance behind him, moving slowly north. As soon as the main part of the train.passed the deceased apparently assumed that it was the entire train and stepped upon the end of the ties and followed it without noticing the cars coming behind him. He was soon overtaken by the caboose and box car and run over. The deceased did not look behind him at any time. He was apparently unconcerned and indifferent, as if wholly unconscious of danger.

It was unnecessary for him to go upon the ties.. The walking was more convenient on the ground where he had been while the train was passing. He was not attempting to cross the track. He was not between the rails. He was going up the track toward the crossing, and was on the end of the ties just outside of the east rail. He was an intelligent young man, in possession of all of his faculties. He had lived there for years and had been about the depot and grounds daily, and must have been familiar with the movement and management of freight-trains and the methods of switching. A brakeman was on the rear car of the train going north, but no one was on the box car behind the deceased. None of the trainmen saw the deceased after he stepped on the ties and before he was injured.

It is claimed that the deceased had a right to be upon the track and grounds of the defendant by reason of the long-continued* use made thereof by the public, without objection, and that the defendant was guilty of negligence in not having some person on the box car to warn people who might be on the track. In the view we have taken of this case it is unnecessary to consider what rights the deceased and others acquired by being permitted to cross and recross the railroad at this place. The deceased was not using the track for crossing purposes. He was walking on the ties along the main track. Whatever use in crossing the tracks had been acquiesced in by the company would not give one the right to travel along the track, and the deceased in so doing was without right and was a trespasser.

Under the former decisions of this court the deceased was clearly guilty of contributory negligence which bars a recovery. The deceased was not upon the premises of the defendant for any purpose in which it had an interest. He was there solely for his own convenience. It was in the early afternoon, when there was nothing to obscure the vision. When the train was passing the deceased he was walking on the ground in a place of safety, going in the direction of a crossing. Had he continued in his course, as would naturally be expected, he would not have been injured. The rear car on that part of the train which went north with the engine was an empty coal-car. The deceased saw it. He must have known that it was not the rear end of a freight-train. If he had used his ordinary senses he would have known by the absence of the caboose that the train had been cut in two. His conduct was that of extreme indifference and recklessness. He neither looked nor listened; he took no precaution whatever.

It has been frequently decided by this court' that persons may not recklessly place themselves in a place of danger and then recover damages because of injuries received thereby. (Zirkle v. Railway Co., 67 Kan. 77, 72 Pac. 539; Railway Co. v. Schwindt, 67 Kan. 8, 72 Pac. 537; Libbey v. Railway Co., 69 Kan. 869, 77 Pac. 541; Railway Co. v. Withers, 69 Kan. 620, 77 Pac. 542, 78 Pac. 451; Railroad Co. v. McMinn, 72 Kan. 681, 84 Pac. 134; Hoopes v. Railway Co., 72 Kan. 422, 83 Pac. 987.) The judgment is affirmed.

All the Justices concurring.  