Acker v. The Union Pacific Railroad Company
Decision Date | 06 March 1920 |
Docket Number | 22,247 |
Citation | 106 Kan. 401,188 P. 419 |
Parties | PHILLIP ACKER, Appellant, v. THE UNION PACIFIC RAILROAD COMPANY, Appellee |
Court | Kansas Supreme Court |
Decided January, 1920.
Appeal from Geary district court; ROSWELL L. KING, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
AUTO TRUCK--Crossing Railroad Track--Duty of Driver--Contributory Negligence. In a railway crossing case, it is held (following Wehe v. Railway Co., 97 Kan. 794, 156 P. 742, and kindred cases) that where the plaintiff and his employee who was driving his automobile discovered, just before they were about to cross the railroad track, that their view of the track was obstructed by clouds of smoke from engines standing on another track, it was contributory negligence for them to proceed to cross without stopping and waiting or going to some point where a view of the track could be obtained, if there was no other way of determining whether a train was approaching.
James V. Humphrey, and Arthur S. Humphrey, both of Junction City for the appellant.
R. W. Blair, T. M. Lillard, and O. B. Eidson, all of Topeka, for the appellee.
The action was for damages resulting from a collision between Acker's truck and a Union Pacific train. A demurrer to the plaintiff's evidence was sustained, from which he appeals.
The accident occurred at a country highway crossing and in broad daylight. Acker was employed to transfer certain household goods from Junction City to Manhattan on January 30, 1918. He was riding on the truck, which was being driven by Ellis, who was in his employ. Acker testified that when they came in sight of the crossing, about a mile therefrom, they saw two trains standing on the first track headed as though eastbound. The engine of the first train was about half a block from the crossing and had three or four cars and a caboose attached to it. They saw the semaphore to the left standing up and decided correctly that this was because of the standing trains. At the culvert, 75 or 100 feet from the crossing, the driver disengaged the auto engine and nearly stopped--not to a "dead" stop, but just so the shift could be made to "low" going down a little incline from the culvert. Thence they proceeded on low, until struck, able and on the alert to stop on the instant. They looked for flagmen and trainmen, but none was in sight. They listened for signal of whistle or bell, but none was given. They saw, while approaching, dense smoke issuing from the engines and settling over the fields on the other side of the tracks. When on the track, in front of the first train, they perceived for the first time that this smoke settled down over the second track so as to screen it from their view. Acker thought of stopping and going up between the tracks past the smoke, but concluded it wouldn't do, because he would have to pass the first train to the second engine. They concluded, also, it would be safe to cross. On cross-examination Acker testified:
. . . .
"Q. By the time you actually got over that track (first track) then, if it hadn't been for the smoke you had an absolutely clear view down the (second) track for just as far as the eye would reach? A. I would have if it hadn't been for the smoke, yes, sir.
. . . .
To continue reading
Request your trial-
Horton v. Atchison, T. & S.F. Ry. Co.
... ... Railway Company for damages to plaintiff's semitrailer ... truck unit as ... passenger train at a railroad crossing. From an order ... sustaining defendant's ... v. Holland, 60 Kan. 209, 56 P. 6; ... [Union Pac.] Railroad Co. v. Entsminger, 76 Kan ... 746, 92 P ... 314, 318, 87 P.2d 585; Johnson v. Union Pacific R ... Co., 157 Kan. 633, 642, 644, 143 P.2d 630 ... Railway ... Co., 100 Kan. 165, 168, 163 P. 801; Acker v. Union ... Pac. Railroad Co., 106 Kan. 401, 188 P. 419; ... ...
-
Scott v. Mo. Pac. Railroad Co.
...plaintiff Scott bars recovery for the primary negligence charged to the defendant. Bazzell v. Ry. Co., 5 Pac. (2d) 804; Acker v. Railroad Co., 106 Kan. 401, 188 Pac. 419; Wehe v. Ry. Co., 97 Kan. 794, 156 Pac. 742; Pritchard v. Ry. Co., 99 Kan. 600, 162 Pac. 315; Bunton v. Ry. Co., 100 Kan.......
-
Jacobs v. Atl. Coast Line R. Co
...where a view of the track could be obtained, if there was no other way of determining whether a train was approaching." Acker v. R. Co., 106 Kan. 401, 188 P. 419. The conduct of Braddock must be measured by the same yardstick as if he had been sued for the death of the child. If he had, I t......
-
Scott v. Missouri Pac. R. Co.
... ... 374 Harry S. Scott and the Travelers Insurance Company v. Missouri Pacific Railroad Company, a Corporation, ... Bazzell v. Ry. Co., 5 P.2d 804; Acker v ... Railroad Co., 106 Kan. 401, 188 P. 419; Wehe v ... ...