Atkinson v. Lusk

• Decision Date: 06 July 1918
• Docket Number: 21667
• Parties: ATKINSON v. LUSK et al.
• Court: Kansas Supreme Court

173 P. 914

103 Kan. 446

ATKINSON v. LUSK et al.

No. 21667

Supreme Court of Kansas

July 6, 1918

Syllabus

A person approaching a railroad crossing in a horse-drawn vehicle at a moderate speed, who is injured as the result of his attempt to cross in front of an approaching motorcar which he is prevented by obstructions from seeing until he is within 20 feet of the track, but which is visible to him from that time on, is chargeable as a matter of law with contributory negligence. The ordinary rule is not affected by the fact that the motorcar is lower than a locomotive, or a passenger or box car, so long as it is high enough to be seen.

Appeal from District Court, Cherokee County.

Action by Arthur F. Atkinson against James W. Lusk and others receivers. Judgment for plaintiff, and defendants appeal. Reversed, and cause remanded, with direction to enter judgment for defendants.

R. R Vermilion and W. F. Lilleston, both of Wichita, and W. F Evans, of St. Louis, Mo., for appellants.

C. A. McNeill, of Columbus, for appellee.

OPINION

MASON J.

Arthur F. Atkinson, while attempting to cross the track of the Frisco Railroad with a horse and wagon, received injuries as the result of a collision with a flat car pushed by a gasoline motorcar, on account of which he recovered a judgment against the receivers of the company. The defendants appeal.

The petition alleged that as the plaintiff approached the track his view was obstructed from the time he was within 50 yards of it until the distance was reduced to about 30 feet. The jury found that the defendants’ employés were negligent in running too fast and in failing to give proper warning. They also undertook to acquit the plaintiff of any negligence, but they found specifically that, after he had reached a point 20 feet from the track, there was nothing to prevent his seeing the approaching motorcar, if he had looked. Inasmuch as, from the time the plaintiff was within 150 feet of the railroad until he was within 50 feet of it, he was prevented by obstructions from seeing whether the track was clear, it was his duty to look for an approaching car after emerging from this obstructed zone and before attempting to cross. Beech v. Railway Co., 85 Kan. 90, 116 P. 213. If he failed to do so, he was guilty of contributory negligence as a matter of law, and thereby precluded from recovery. If he did look, he necessarily saw the motorcar coming, and his...