Angell v. Chicago, R.I. & P. Ry. Co.

• Decision Date: 08 April 1916
• Docket Number: 20057
• Parties: ANGELL ET AL. v. CHICAGO, R.I. & P. RY. CO. ET AL.
• Court: Kansas Supreme Court

156 P. 763

97 Kan. 688

ANGELL ET AL. v. CHICAGO, R.I. & P. RY. CO. ET AL.

No. 20057

Supreme Court of Kansas

April 8, 1916

Syllabus

The evidence held to warrant a finding of actionable negligence on the part of a railway company with respect to a crossing accident.

It cannot be said as a matter of law that a girl of 19, riding in the rear seat of a carriage driven by her brother-in-law is bound to advise him with respect to the management of the team on approaching at night a railroad crossing where obstructions prevent a view of the track from a greater distance than about 15 feet, although she is familiar with the surroundings and he is not.

It is not an abuse of discretion to refuse a request, made after the impaneling of a jury, to allow an answer which alleges only personal contributory negligence on the part of the person for whose death a recovery is sought, to be amended so as to charge also imputed negligence.

Upon the issue whether a person killed in a crossing accident had looked and listened for a train upon approaching a railroad crossing, his habit in that regard may be shown.

Rulings relating to instructions held to be either correct or nonprejudicial.

The fact that several defendants, whose interests are not entirely similar, have in the earlier stages of a case been represented by the same counsel, does not prevent their insisting upon being heard through separate attorneys at the trial. And the refusal of the court to allow one of them to have the adverse witnesses cross-examined in his behalf by his own lawyer is such a denial of his right to a full hearing as to require a new trial.

Appeal from District Court, Meade County.

Action by A. V. Angell and another against the Chicago, Rock Island & Pacific Railway Company and others. From a judgment for plaintiffs, defendants appeal. Affirmed as to the Railway Company, and reversed with directions for a new trial as to the remaining defendants.

Paul E. Walker and Luther Burns, both of Topeka, and J. W. Davis, of Greensburg, for appellants.

Charles Stephens, of Columbus, Lee Shepherd, of Joplin, Mo., C. A. McNeill, of Columbus, and F. B. Wheeler, of Pittsburg, for appellees.

OPINION

MASON J.

Goldie Angell, 19 years of age, was killed in a collision between a Rock Island passenger train and a carriage in which she was riding. Her parents recovered a judgment against the railway company and its engineer and fireman, and they appeal.

The accident occurred at about half past 10 o’clock on a moonlight night, in Plains, a city of the third class, having about 400 inhabitants, at a much-traveled crossing, the only one for a distance of half a mile in either direction. The railroad runs approximately east and west. The train came from the east, the carriage from the north. A view of the track to the east from a vehicle approaching from the north was cut off, until the observer should be about 15 feet from the track, by the station and other buildings, by some box cars standing upon the house track 50 feet to the north, and by a signboard 60 to 70 feet north of that. An ordinance prohibited trains from running faster than 10 miles an hour within the corporate limits. The mayor had written to the company to the effect that a speed of 20 miles an hour would not be objected to if the street were kept free from standing cars for its entire width. The jury found that the train was making 40 miles an hour at the time of the accident. There was evidence that no bell was rung, and that a whistle was blown while the train was more than a mile from the station, but not later.

1. The jury based its verdict on three forms of negligence--failing to give a proper warning, violating the speed limit, and blocking the view of an approaching train. The defendants maintain that neither the failure to give a proper warning nor the speed of the train was a proximate cause of the accident, and that the obstruction of the view of the track was not negligent. On the first proposition the substance of the argument seems to be that if the occupants of the carriage had been exercising any reasonable degree of care they would have heard the whistle or the noise of the train, and that as they were paying no attention to the matter whatever, they would not have heard the whistle if it had been blown again, or the bell if it had been rung. Whether that was the case was a question of fact which the jury must be regarded as having determined against the defendant. With regard to the violation of the ordinance it is argued that as the driver testified that he did not see the train before the team was upon the main line and the front wheels of the carriage were going upon the crossing, the accident would have occurred if the rate had been but 20 miles an hour, or even 10. There was also evidence, however, that the engine struck the rear wheels of the carriage, so there is room for the inference that if the speed had been 10 miles an hour, or even 20, the driver would have been able to cross in safety. The effect of the mayor’s statement that under certain conditions the violation of the ordinance would not be objected to is therefore not important, but as such a regulation has the force of law (Denton v. Railway Co., 90 Kan. 51, 55, 133 P. 558, 47 L. R. A. [N. S.] 820, Ann. Cas. 1915B, 639), the suggestion that it could be nullified or modified otherwise than by repeal or amendment lacks plausibility. See 33 Cyc. 977; Garber v. St. Louis Southwestern Ry. Co. of Texas (Tex.Civ.App.) 118 S.W. 857. The obstruction of view which the plaintiff relied on as constituting negligence on the part of the railway company was that due to the placing of the freight cars on the house track. The company maintains that although the cars were so placed as to have that effect, no showing was made that such arrangement was unnecessary or improper. The fact that the view was so far cut off by other obstructions, which presumably were necessary, warranted the conclusion that if practicable the cars should be so placed as not to restrict it still further. There was perhaps room for a finding that some other disposition could and should have been made. But this element of negligence could be eliminated without requiring a reversal.

2. The principal contention of the defendants is that the evidence conclusively shows the decedent to have been guilty of contributory negligence. She was familiar with the crossing and had often driven over it. On the night of the accident she went in the carriage, belonging to her parents with whom she was living, accompanied by two sisters and a younger brother, from their home to attend a revival meeting. Anothe...