Bass v. St. Louis-San Francisco Ry. Co.

• Decision Date: 09 May 1936
• Docket Number: 31050.
• Citation: 143 Kan. 740,57 P.2d 467
• Parties: BASS v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Kansas Supreme Court

57 P.2d 467

143 Kan. 740

BASS v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 31050.

Supreme Court of Kansas

May 9, 1936

Syllabus by the Court.

1. In an action for damages for injuries received at a railroad crossing on account of the negligence of the defendant railway company, where it is stated in the petition that the plaintiff's automobile became stalled upon the crossing and before the plaintiff could get out of the automobile or away from the crossing the collision occurred, it is held that it was sufficient to inform the defendant of the intention of the plaintiff to make a claim under the last clear chance doctrine, although the pleadings along that line were incomplete. Juznik v. Kansas City Southern Railway Co., 109 Kan. 359, 199 P. 90.

2. Where, in an action for damages received on account of the negligence of the defendant, the jury answered a special question stating the ground of negligence on which the verdict was based, which ground the petition did not allege but did allege the exact opposite thereof, the defendant is entitled to judgment on the special findings notwithstanding the general verdict, not only under the general claim for damages, but also for a claim under the doctrine of the last clear chance.

Appeal from District Court, Crawford County, Division No. 2; Joe E Gaitskill, Judge.

Action by Albert Bass against the St. Louis-San Francisco Railway Company. From adverse rulings and a judgment for plaintiff defendant appeals.

Reversed, with directions.

W. F. Lilleston and H. V. Gott, both of Wichita, P. E. Nulton, of Pittsburg, and E. T. Miller, of St. Louis, Mo., for appellant.

D. G. Smith, of Girard, for appellee.

HUTCHISON Justice.

This is an appeal by a railway company from a judgment rendered against it for damages received by the plaintiff in a collision of his automobile with the defendant's train at the crossing of the railway track over Quincy street, in the city of Pittsburg.

The street runs east and west and the railroad crosses it running from the northeast to the southwest. The plaintiff was going east on the south side of Quincy street in a Ford automobile shortly after noon on September 3, 1931, and he alleged the train was coming toward the crossing from the northeast, and that the view of the train coming from that direction was obstructed to one traveling east on Quincy street by a building and trees for a distance of about 60 feet to the west of said crossing. Plaintiff alleged that he was traveling "* * * at a rate of speed of about 10 to 15 miles per hour, when said automobile became stalled upon said railroad crossing on said Quincy Avenue, and while plaintiff was so situated and before he could get out of said automobile and away from said automobile and the said railroad crossing to a place of safety, the said defendant's gasoline motor engine in charge of the agents and servants of the said defendant, the name of such agents and servant, plaintiff does not know and cannot allege, and with two cars, a baggage and passenger car each, attached to said engine, suddenly and without any warning or signal of any kind, either by bell, whistle or otherwise, and without having said engine and cars under control so that they could be stopped by brakes or otherwise; without the agents and servants in charge of said engine and cars having a view of said crossing, and without maintaining or having any flagman at said crossing, suddenly and at a high and dangerous rate of speed operated and ran said engine and cars from behind said obstructions approaching from the north-east over and upon said crossing and against plaintiff. * * *"

The petition then described the nature of the collision and the character and extent of the personal injuries received and prayed for damages in the sum of $3,000. The answer of the railway company consisted of a general denial and a plea of contributory negligence. The reply was a general denial.

Along the line of the allegations in the first part of those above quoted, with reference to plaintiff's automobile becoming stalled upon the railroad crossing, we are informed by the briefs that evidence was introduced as to the last clear chance, and that the trial court gave some instructions on that subject.

The jury rendered a verdict for plaintiff for $1,525 and answered the following special questions:

"Q. (1) Do you find that on the occasion in question the railroad track was straight for at least an eighth of a mile northeast from the point of accident? A. Yes.

Q. (2) At what rate of speed was plaintiff driving the automobile in approaching the railroad track on the occasion in question? A. 10 to 15 miles per hour.

Q. (3) At what rate of speed was defendant's train approaching the point of accident on the occasion in question? A. 15 to 20 miles per hour.

Q. (4) On approaching the railroad track on the occasion in question did plaintiff stop before going on track? A. No.

Q. (5) If you answer the preceding question in the affirmative state how many feet from the point of accident plaintiff thus stopped? A.

Q. (6) On the occasion in question do you find that plaintiff, when thirty or thirty-five feet from the point of collision, saw the defendant's train approaching? A. Yes.

Q. (7) On the occasion in question do you find that plaintiff, when thirty or thirty-five feet from the point of collision, saw defendant's train approaching about one hundred from the point of collision? A. Yes.

Q. (8) On the occasion in question, from the time plaintiff got within twenty-five feet of the point of collision until he drove on the railroad track, what, if anything, was there to prevent his ascertaining the approach of the defendant's motor engine and car, if before going on the track, he had stopped and carefully looked along that track in the direction from which the engine was then coming thereon? A. Nothing.

Q. (9) On the occasion in question, from the time plaintiff got within twenty feet of the point of collision until he drove on the railroad track, what, if anything, was there to prevent his ascertaining the approach of the defendant's motor engine and car, if, before going on the track, he had stopped and carefully looked along that track in the direction from which the engine was then coming thereon? A. Nothing.

Q. (10) If you find for the plaintiff please state upon what grounds you base your verdict? A. We feel that the train could have been stopped."

Defendant moved to return the jury for a full and responsive answer to question No. 10. This motion was denied, as were also motions for judgment for defendant on the answers to the special questions notwithstanding the general verdict and for a new trial. From these rulings and the judgment rendered for plaintiff, the defendant appeals.

The abstract does not contain any of the evidence, but only the pleadings, verdict, and answers to special questions, journal entry, and notice of appeal. Appellee has filed a counter abstract for the purpose of showing the evidence of the plaintiff on the question of the last clear chance.

The appellant insists that this doctrine was not alleged in the petition and proof along that line is along a line essentially different from that alleged in the petition citing especially Grentner v. Fehrenschield, 64 Kan. 764, 68 P. 619, and McDowell v. Geist, 134 Kan. 789, 8 P.2d 372, holding that the pleadings should be along the line of a single and definite theory. The petition unquestionably alleged plaintiff's right to damages for injuries received on account of defendant's negligence, setting out several features of negligence. Yet there is in the petition some of the allegations upon which there might be based the...