Bazzell v. Atchison

• Decision Date: 12 December 1931
• Docket Number: 30119.
• Parties: BAZZELL et al. v. ATCHISON, T. & S. F. RY. CO. [*]
• Court: Kansas Supreme Court

5 P.2d 804

134 Kan. 272

BAZZELL et al. v. ATCHISON, T. & S. F. RY. CO. ^[*]

No. 30119.

Supreme Court of Kansas

December 12, 1931

Syllabus by the Court.

View of railroad track constitutes warning to approaching traveler by automobile that crossing is place of danger.

Driver of automobile before entering upon railroad crossing has duty to exercise ordinary care for his own safety.

Exercise of ordinary care by automobile driver approaching railroad crossing requires that driver use faculty of sight and hearing to ascertain danger, if any.

Negligence of driver of automobile in going upon railroad crossing, if contributing to collision and injury, defeats recovery of damages against railroad.

In action for damages for death of passenger in automobile struck by train at private railroad crossing, evidence held to establish decedent's contributory negligence precluding recovery against railroad.

Under the law, a view of a railroad track is a warning to an approaching traveler that the crossing is a place of danger and, before entering upon it, it is his duty to exercise ordinary care for his own safety.

Ordinary care of a traveler approaching a crossing in an automobile requires that he should use his faculty of sight and hearing before entering upon the crossing to ascertain if there is a danger in going upon it, and, if his negligence in that respect contributes to a collision and injury, it will defeat a recovery of damages against the railroad company.

Under the facts found by the jury, it is held that the contributory negligence of the approaching traveler barred a recovery of damages for the result of a collision which occurred on the crossing.

Appeal from District Court, Greenwood County; A. T. Ayres, Judge.

Action by Charles Bazzell and another against the Atchison, Topeka &amp Santa Fé Railway Company. Judgment for the plaintiffs, and the defendant appeals.

Reversed and cause remanded, with directions.

Wm. R Smith, Alfred A. Scott, and C. J. Putt, all of Topeka, and W. L. Huggins, of Emporia, for appellant.

I. T. Richardson and L. W. Richardson, both of Emporia, and C. C. Carper, of Eureka, for appellees.

JOHNSTON C. J.

When Lois Bazzell was riding in an automobile driven by her brother Roy Bazzell, over a private crossing of the railroad, the automobile was struck by a passenger train of the Atchison, Topeka & Santa Fé Railway Company, and she was instantly killed. Plaintiffs, the parents of Lois Bazzell, brought this action against the railway company to recover damages for the loss sustained by them upon the ground that the injury and death were caused by the negligence of the railway company. They recovered damages in the amount of $2,000, and, from the judgment, defendant appeals.

It appears that the Bazzell family lived in a farmhouse about 300 yards from a private railroad crossing, which had been in use for a considerable time. About four o'clock in the afternoon of a November day, the deceased and her brother drove out over the private road leading from the home to the crossing intending to go on out to a public highway on the other side of the railroad. As they went upon the crossing, a passenger train, traveling at a speed of about fifty-five miles per hour, struck the front part of the automobile and the injury and death followed. When the train was within 300 feet of the private crossing, a fireman on the engine saw the automobile approaching the crossing, which was then about ten or twelve feet from it, and apparently traveling at a speed of about fifteen miles an hour, he shouted "auto" to the engineer, who at once shut off the power of the engine, set the brakes, but the train could not, of course, be stopped in the distance, and the collision occurred.

The plaintiffs contend that the defendant was negligent: First, in that the train was operated at an excessive rate of speed in view of the conditions existing at the crossing; second, that the railway company permitted a rank growth of vegetation to stand upon the right of way which concealed the view of the approaching train; third, its failure under the circumstances to sound any warning or other signal at the crossing; fourth, permitting the crossing to be out of repair and unsafe for use; and fifth, that those in charge of the engine operating the train were in a position to see the automobile approaching the crossing in ample time to have sounded a warning which would have enabled the deceased to have stopped and escaped the injury and death. Special questions were submitted to the jury, which were answered as follows:

"1. When Lois Bazzell, riding in the automobile crossed the right of way line, going west on the private highway and immediately before the accident, what if anything prevented her from seeing the railroad track at its intersection with the road upon which she was being driven? A. Nothing.

"2. When Lois Bazzell reached a point fifty feet east of the crossing of the track as she was being driven west on the private road, how far to the northwest could she have seen the train approaching her if she had looked? A. Seventy-five feet.

"3. If you answer question No. 2 that she could not see it, state what prevented her from seeing it when she reached a point within fifty feet of the crossing of the defendant railway company. A. Vegetation.

"4. When Lois Bazzell, riding in the automobile, came within twenty-five feet of the railway track of its intersection with the private drive upon which she was being driven, how far away was the train in question? A. Two hundred twenty feet.

"5. When Lois Bazzell, riding in the automobile, reached a point in the private way within twenty-five feet of the railroad track, what if anything, prevented her from seeing the train approaching the crossing? A. Weeds and grass.

"6. When Lois Bazzell reached a point on the private road upon which she was being driven fifteen feet east of the east rail of defendant's track at the crossing, could she have looked to the north and seen the approaching train for a distance of 200 feet? A. Yes.

"7. When Lois Bazzell, riding in the automobile, along said private way toward the west, reached a point seventy-five feet east of the crossing in question, what if anything, prevented her from looking toward the northwest and seeing the right of way of the defendant railway company around and beyond the curve described in the evidence? A. Tall corn stalks.

"8. What was the nature of the ground at the intersection of the railroad track and the private drive in question as to being smooth, or uneven, hilly or level? A. Uneven.

"9. Was the railway crossing at the point where Lois Bazzell was struck by the train in good or bad condition for vehicles crossing at that point? A. Bad.

"10. If you answer question No. 9 that the railroad track and crossing was in bad condition, state what was wrong with it that made it bad. A. No filling between planks, no grading outside planks."

Motions were made to set aside several of the findings because they were contrary to the evidence and that the verdict was without sufficient support. These as well as a motion for a new trial were overruled, and it is insisted by the defendant that no negligence of the railway company was...