
    Pacific R. Co. v. John Houts.
    
    July Term, 1873.
    1. Railroad: Negligence: Moving Train: Speed. Where a team is injured by a railroad train within the limits of a city, and upon one of its streets; and on the trial of an action to recover damages therefor there is testimony that the train was running at an unusual ‘Ipeed; that no effort was made to stop it, or to warn the party in charge of the team of the approaching danger; and that no whistle was sounded or bell rung, —it cannot be held that there is no evidence of negligence.
    2. -. The rate of speed at which a train is run through the streets of a city may be an important fact in determining the question of negligence, and an instruction to the contrary is properly refused. [Kansas Pac. Ry. Co. v. Richardson, 25 Kan. 408.]
    3. Contributory Negligence. If the negligence of the defendant was the direct and immediate cause of the injury, and that of the plaintiff only the remote cause; or if the negligence of the defendant was gross, and that of the plaintiff only slight, — there is no such contributory negligence on the part of the plaintiff as will prevent his recovering.
    Error from Wyandotte district court.
    Action by Houts against the Pacific Railroad Company, to recover ■ damages for an alleged wrongful act of the company in running upon and killing a span of horses, at the city of Wyandotte, in October; 1871. Tried at the June term, 1872, and verdict and judgment for Houts for $268.
    
      Bartlett & Hale, for plaintiff in error.
    There is no conflict of evidence as to the facts in this case, on any material point litigated; hence the whole question is still open for the consideration of this court. It is only where there is a conflict of evidence, or some evidence, upon which a court or jury has passed, that the finding is conclusive in this court. “Where there is no evidence to sustain a verdict, as in the case at bar, or a total lack of evidence, on any point essential to a recovery, it presents a question whether the party has a right to recover without such evidence, which is clearly a simple question of law.” Backus v. Clark, 1 Kan. *311; Union Pac. R. Co. v. Rollins, 5 Kan. *181; Sanford v. Eighth Avenue R. Co., 23 N. Y. 343; Mason v. Lord, 40 N. Y. 476; Ernst v. Hudson River R. Co., 39 N. Y. 61.
    The only difference of opinion among the witnesses on the trial of the action was in relation to the speed of the train and the ringing of the bell, — two questions which were entirely immaterial. No witness swore that the speed of the train was uncommon and dangerous. In fact the evidence shows most conclusively that the train was moving uncommonly slow; there was a slight variation in the testimony as to the rate per hour, but the fact was entirely immaterial. Houts swore, and several other witnesses for him, that they heard no whistle. The hands on the train all swore, however, that the whistle was sounded, which merely goes to show that some of the witnesses did not hear the whistle, while others did, — and if this be called a “conflict of testimony,” it is entirely immaterial. The law is well settled that the railroad company, under the circumstances of this case, was not bound to do either. Shear. & R. Neg. §§ 478, 485, 486; Max-field v. Patch®n, 29 111. 42; Illinois Cent. R. Co. v. Phelps, Id. 447; Pittsburg, Ft. W. & C. R. Co. v. Karns, 13 Ind. 87; Button v. Hudson River R. Co., 18 N. Y. 248; Steves v. Oswego & S. R. Co., Id. 422; Burton v. Philadelphia, W. & B. R. Co., 4 Har. (Del.) 252; Grippin v. New York Cent. R. Co., 40 N. Y. 34. There was no negligence on the part of the company in the speed of the train, or in the ringing of the bell. The mere fact of an accident having happened by which Houts lost his horses is not sufficient to warrant a recovery against the railroad company, although it should appear that they were run over by the ears. 2 Greenl. Ev. §§ 85-92; Shear. & R. Neg. §§ 5, 6, 8; Brown v. Kendall, 6 Cush. 292; Hartfield v. Roper, 21 Wend. 615; Grippin v. New York Cent. R. Co., 40 N. Y. 34; Sweeny v. Old Colony & N. R. Co., 10 Allen, 372; Townsend ■ Manuf’g Co. v. Foster, 51 Barb. 346; Evansville & C. R. Co. v. Hiatt, 17 Ind. 102.
    At the time of the accident the parties were engaged in lawful business, — the plaintiff in taking his grain to the mill, and the defendant in operating its road. The place where the accident happened was a very dangerous one; and witness Campbell stated that they always got the horses away from there as soon as possible, and that there was a mill-yard on the south of the mill, and a vacant place, and that a team could be taken, out in a few minutes and put there. Houts swore that his horses were “scary; but take them away from a railroad, and they were dull.” Conceding, for argument’s *sake, that, with this knowledge of Houts of the nature of his horses, and the dangerous position they were in, and conceding that he was guilty of no contributory negligence, taken with the unconflicting evidence on the part of the company that those engaged in operating the train were guilty of no negligence whatever, certainly, under siich a state of facts, the jury should have rendered a verdict for the defendant. But the court erred in sustaining the objections of Houts to tlie questions put to witness Campbell.
    The proximate cause of the accident was the negligence of Houts in placing his horses in a very dangerous position, and leaving them there until he had unloaded his grain, without any hitching. It was his duty when he unhitched three of the tugs, to have unhitched them all, and to remove his horses to the mill-yard, described by the witness Campbell. This negligence on his part was the proximate cause which ultimated in the catastrophe. “Proximate” does not mean the nearest in order of time to the accident, but the nearest in the order of causation. “So, when a trespasser enters an inelosure, some time may elapse before he is injured; yet if the injury was part in consequence of his being on the premises, 1ns wrongful entry may properly be described as the proximate cause of the injury.” Shear. & R. Neg. §§ 33, 597; Isbell v. New York & N. H. R. Co., 27 Conn. 393; Richmond v. Sacramento Yalley R. Co., 18 Cal. 351; Butler v. Kent, 19 Johns. 223; Salem Bankv. Gloucester Bank, 17 Mass. 11; Gloucester Bank v. Salem Bank, Id. 32; Chicago & N. W. Ry. Co. v. Goss, 17 Wis. 428; Ernst v. Hudson River R. Co., 39 N. Y. 61; Ward v. Milwaukee & St. P. Ry. Co., 29 Wis. léé.
    The defendant asked the court to instruct the jury that it is not negligence, as a general principle, for railroad companies to run their trains at any rate of speed they choose. This instruction was refused, and in which the court erred. Shear. & R. Neg. § 478; Brady v. City of New York, 20 N. Y. 315; Wilds v. Hudson River R. Co., 29 N. Y. 315; Bemis v. Connecticut & P. R. Co., 1 Amer. Rep. 339. The counsel for the company also requested the court to give for the defendant the following charge to the jury: “If the jury shall find from the evidence that the defendant was negligent, yet if the jury shall also find that the plaintiff was also negligent in regard to his horses, and which contributed even in the slightest degree to the accident, that then the ^plaintiff cannot recover.” This instruction the court refused to give. If the negligence of the ' plaintiff, however slight, contributed proximately to the accident, the plaintiff cannot recover. The plaintiff was bound to exercise ordinary care. Shear. & E. Neg. §§ 16-23, 30, 37; Perkins v. New York Cent. E. Co., 24 N. Y. 206; Steam-boat New World v. King, 16 How-474; Cleveland, C. & C. E. Co. v. Terry, 8 Ohio St. 570, 581; Pennsylvania E. Co. v. McTighe, 46 Pa. St. 316; Cunningham v. Lyness, 22 Wis. 245; Toledo & Wabash Ey. Co. v. Goddard, 25 Ind. 185.
    
      
       See note to Union Pac. Ry. Co. v. Rollins, 5 Kan. 99; Moore v. Cass, 10 Kan. 220, and note; Atchison, T. & S. F. R. Co. v. Stanford,post, *355.
    
   Brewer, J.

The defendant in error recovered a judgment against the plaintiff in error for damages to a span of horses. Error is alleged in rejecting testimony; in the instructions; and in this: that the verdict is not sustained by the evidence. The circumstances of the injury, as they appeared from the testimony, were substantially as follows:. The track of the railroad runs between two mills, which, are from 80 to 100 feet apart. Houts was unloading grain at one of these mills. His horses were frightened by a passing train, and notwithstanding his efforts, ran onto the track, and were struck by the locomotive. The mills were within the limits of the city of Wyandotte, and the railroad track runs on a public street between them. There was testimony tending to show that the train was running at an unusual speed; that no whistle was sounded or bell rung; no-effort made to warn Houts of the approaching danger, or to check the train. While there was conflicting testimony on these points, yet the jury have found against the plaintiff in error, and this court cannot say that there was no testimony sustaining the verdict.

2. John Campbell was called as a witness by the railroad company, and testified that some years prior to the accident he had been running the mill opposite to the one where the accident occurred. He was asked these two questions, which, upon the objection of defendant in error, were ruled out: “What were your customers, coming to-your mill on business, in the habit of doing with their teams while there, as a matter of safety?” “What did ordinary and prudent men do for the safety of their teams while unloading their grain at the *mill, when you were running it?” An obvious objection to these two questions is that they refer to a locality other than that of the accident, and imply an assumption, not warranted by the testimony, that the surroundings and means of protection were identical in the two mills. Another objection is that they refer to a time long anterior to that of the injury, with a like implied assumption. It may also well be doubted whether the testimony would be competent independent of these objections. It was for the jury to say whether, under the circumstances as they existed at the time of the injury, Houts used reasonable precaution, or was guilty of negligence contributing to the injury;.and the fact that others coming to the same mill, at about the same time, were accustomed to do this or that, did not show that the precautions Houts used were not reasonable. At any rate, we see nothing in this ruling of the court to justify us in disturbing the judgment.

3. The remaining question is on the instructions. The rule in reference to contributory negligence was stated in accordance with the views heretofore expressed by this court. Union Pac. Ry. Co. v. Rollins, 5 Kan. *167; Sawyer v. Sauer, 10 Kan. *466.

Some instructions were asked by the plaintiff in error which,whether correct in any case or not, would have been manifestly improper ins this. For instance, the third: “It is not negligence, as a general principle, for railroad companies to run their trains at any rate of speed they may choose.” Now, however much of truth there may be in this when applied to the running of trains outside of a city*, and away from settlements, it would, in a case like the present, convey to a jury a very incorrect impression. It would give them to» understand that the amount of speed had nothing to do with the-question of negligence, while in truth it is a very important factor therein. For a company to run its trains at the highest speed! through the crowded streets of a city would be the grossest negligence ; and the rate of speed at which those trains may be run is relative to the dangers attendant on such running. The fifth instruction, to the effect that in some cases it is the duty of the en~ gineer *to increase the speed of the train, is entirely inapplicable to this case, as presented by the testimony on either side.. The other instructions asked by the company, and refused, are so» manifestly incorrect that it is unnecessary to notice them in detail.

These are all the questions presented by counsel in their briefsy and in them appearing no error, the judgment will be affirmed.

(All the justices concurring.)  