Bazzell v. The Atchison

• Decision Date: 03 July 1931
• Docket Number: 29,999
• Citation: 300 P. 1108,133 Kan. 483
• Court: Kansas Supreme Court
• Parties: MRS. ROY BAZZELL, Appellant, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellee

300 P. 1108

133 Kan. 483

MRS. ROY BAZZELL, Appellant, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellee

No. 29,999

Supreme Court of Kansas

July 3, 1931

Decided July, 1931.

Appeal from Greenwood district court; ALLISON T. AYRES, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS--Accident at Crossing--Wanton Negligence of Company--Instructions. It was not error for the trial court to refuse to instruct the jury as to wanton negligence of the engineer and fireman of the defendant railway company unless the facts and circumstances in evidence put them in a class with willful doers of wrong, and from which facts and circumstances willful and wanton negligence causing the injury could naturally and reasonably be inferred.

2. SAME--Accident at Crossing--Instructions. The evidence as to the conduct of the engineer and fireman considered and held not to be such wanton and reckless negligence as to justify and require the giving of an instruction on that element or feature of negligence.

3. SAME--Accident at Crossing--Last Clear Chance. The doctrine of the last clear chance considered in connection with the facts and circumstances of the instant case and held to be inapplicable because there is no showing whatever of discontinuance of the contributory negligence of the driver of the automobile, which is an essential in the application of this doctrine.

4. APPEAL AND ERROR--Review of Instructions. The refusal to give an instruction on the doctrine of the last clear chance and on two subjects covered by instructions given, did not constitute error.

5. SAME--Review. The errors assigned in the giving of instructions and overruling of motion and petition for new trial considered and held not to be reversible errors.

I. T Richardson and L. W. Richardson, both of Emporia, for the appellant.

William R. Smith, Alfred A. Scott, C. J. Putt, all of Topeka, and W. L. Huggins, of Emporia, for the appellee.

OPINION

HUTCHISON, J.:

This action was brought to recover damages for the death of plaintiff's husband resulting from a collision between defendant railway company's passenger train and an automobile driven by plaintiff's husband at a private crossing in Greenwood county.

The allegations of negligence were defective crossing, permitting weeds, grass and brush to grow upon the right of way so as to obstruct the view of an approaching train, failure to sound whistle or ring bell to warn deceased of approach of the train, running train at a high and unusual rate of speed, wanton and reckless conduct in handling train, and defective brakes and brake equipment. The answer of the railway company was a general denial and contributory negligence. The trial resulted in a verdict by the jury for the defendant railway company, and plaintiff appeals.

The errors assigned all relate to the giving and refusing to give instructions. Two of the instructions refused, concerning which error is most strongly urged, were those relating to wantonness and the doctrine of the last clear chance.

The deceased was a young married man working for an oil company at a good salary. He was driving, with his sister, from his father's farm to Madison, approaching the private farm crossing from the east about five o'clock in the afternoon of November 25, 1928, and was struck by the engine of a passenger train coming from the north a little behind time, at the rate of nearly or about fifty miles an hour. The engine struck the right rear fender of the Chevrolet coupe about eighteen inches from the rear of the chassis. The sister was instantly killed; plaintiff's husband lived only a few hours and died a few minutes after reaching the hospital, and the car was completely wrecked and ruined.

The crossing was described as being very rough, so as to check the speed in crossing it. The ground both on the outside and inside of the rails was not leveled up to the planks next to the rails, and it was like crossing a plank in the road. The track and roadbed were a little below the general level of the ground and some dirt was piled on the east bank on the right of way so that it stood from two to four feet higher than the track and the highway approach to the track east of the crossing. This depression in the highway was gradual across the east part of the right of way starting at the fence. There was a hedge fence at the east side of the right of way on the north side of the highway leading to the crossing. There were weeds, grass and brush on the right of way north of the road and east of the track, described differently as to height and density, and by some witnesses said to have been cleared off in a triangular form next to the intersection so that one on the road could look up the track as he approached very near the crossing. The track is straight for 280 feet north of the crossing. There it begins to bend to the west behind a corn field, which would make it practically impossible for the engineer to see anyone east of the crossing from his train approaching the crossing from the north, and he did not see the automobile before the collision. The fireman saw the automobile from a point about 300 feet north of the crossing when the automobile was in the cut on the road and moving at about five or six miles an hour; he thought the driver would stop, but he did not; the bank, grass and weeds were not high enough to obstruct his view of the automobile; that the brakes were not applied until about 100 feet from the crossing.

Some photographs said to have been taken the day after the collision, showing the crossing, the driveway and the condition of the bank and weeds on the east right of way and a train on the track 280 feet north of the crossing, were introduced in evidence.

Appellant insists that the conduct of the engineer and fireman in failing and neglecting to sound the whistle and warn the deceased of the approaching train in time for the deceased to have saved himself was wanton negligence showing an indifference for the safety of the deceased, and urges that there was no reason why the engineer should not have seen the automobile of the deceased. The court in the instructions given set out the allegation of wantonness and instructed the jury on wantonness and recklessness in connection with the matter of allowing punitive damages, but did not instruct as requested by the plaintiff as to wanton and reckless conduct on the part of the engineer and fireman in overcoming the effect of contributory negligence. Such instruction should not be given unless there is reasonable and substantial evidence of such wanton conduct.

The only evidence here as to seeing the automobile driven by the deceased is that the fireman did see it from a point 280 feet distant, when he thought, of course, it would stop before going on the crossing, and that the engineer did not see it and could not see it from his position on the engine.

The reasoning of the appellant apparently lacks consistency when it is urged the trainmen could all the time see the automobile, while on account of the bank and weeds the driver could not see the approaching train.

In the case of Railway Co. v. Lacy, 78 Kan. 622, 97 P. 1025, it was said:

". . . That the fact that a collision occurred is not prima facie evidence that it was caused by reckless or wanton negligence. In such a case, before the railway company can be held liable there must be some fact or circumstance in evidence from which the natural and reasonable inference arises that the injury was caused by the reckless or wanton negligence of the employees of the company." (Syl.)

Applying the term "wanton" to the conduct of trainmen under similar circumstances as in this case, it was said in Jacobs v. Railway Co., 97 Kan. 247, 154 P. 1023:

"Enginemen in charge of a locomotive attached to a passenger train, who cut off the steam and apply the air one quarter of a mile before reaching a street crossing in a small city, and who suppose that an electric warning bell stationed at the crossing is ringing are not guilty of wantonness, although they fail to ring the engine bell or sound the whistle for the crossing, and although they go through the city at the rate of forty-five miles per hour." (Syl. P 2.)

The definition given in the case of Railway Co. v. Baker, 79 Kan. 183, 98 P. 804, is regularly referred to as the one applicable to wanton conduct on the part of agents of railway companies in handling trains. It was there said:

"One who is properly charged with recklessness or wantonness is not simply more careless than one who is only guilty of negligence; his conduct must be such as to put him in...