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

*145The opinion of the court was delivered by

Mason, J.:

W. A. Burks was killed while in the service of the Atchison, Topeka & Santa Fe Eailway Company as a freight conductor. His widow sued the company, alleging his death to have been due to its negligence. From a judgment for the plaintiff the defendant appeals. It contends that there was no evidence of actionable negligence on its part, but that, even if there was, the defense of contributory negligence was conclusively established.

There was testimony tending to show these facts, among others: A part of Burks’s train, in order to pick up a car,…