Bledsoe v. Missouri, K. & T.R. Co.

• Decision Date: 06 May 1939
• Docket Number: 34072-34074.
• Citation: 90 P.2d 9,149 Kan. 741
• Parties: BLEDSOE v. MISSOURI, K. & T. R. CO. (two cases). DODD et al. v. SAME.
• Court: Kansas Supreme Court

90 P.2d 9

149 Kan. 741

BLEDSOE v. MISSOURI, K. & T. R. CO. (two cases).

DODD et al. v. SAME.

Nos. 34072-34074.

Supreme Court of Kansas

May 6, 1939

As Amended on Denial of Rehearing June 16, 1939.

Syllabus by the Court.

In consolidated actions against railroad for damages arising out of a collision of an automobile with a freight train at a crossing, evidence that there had previously been a similar collision at the crossing should not have been admitted, even on the theory that it tended to show that the crossing was an unusually dangerous one, since it was possible that the previous collision was solely the fault of the motorist.

The signs to be constructed and the signals to be given by railroad companies at highway crossings are designed primarily at least, to advise travelers on the highway of the approach of trains. Gen.St.1935, 66-2,121, 68-414.

A railroad train passing along a track over a highway intersection is itself a sufficient warning to travelers on the highway of its presence on the railroad crossing.

Generally when a train is rightfully on a crossing and a motor vehicle is driven into it, the sole cause of the damages is the fact that the automobile was driven into the side of the train.

Recovery could not be had from railroad for injuries sustained by guests in automobile which was driven at night into the side of a freight train at highway crossing, where railroad had signs at crossing as required by statute, and motorist had an unobstructed view of the crossing. Gen.St.1935, 66-2,121 68-414.

1. The statutory signs and signals which a railroad company is required to maintain or give at highway intersections are designed primarily to inform travelers upon the highway of the approach of trains.

2. A railway train passing along the track over a highway intersection is itself a sufficient warning to travelers on the highway of its presence on a railroad crossing.

3. Where a railroad train is rightfully on the track, passing over a highway crossing, and one driving an automobile on the highway drives into the side of the train, the proximate cause of the injuries which he and those in the automobile with him sustain as a result of the collision of the automobile with the train is the fact that the automobile was driven into the side of the train.

Appeal from District Court, Montgomery County; J. H. Holdren, Judge.

Consolidated actions by Emma Bledsoe, by her father and next friend, Will Bledsoe, and by Jackson Dodd, Sr., and Idelia Dodd, and by Will Bledsoe, against the Missouri, Kansas & Texas Railroad Company for damages arising out of the collision of an automobile with a freight train of the defendant. From a judgment in favor of the plaintiffs, the defendant appeals.

Judgment reversed, with directions to enter judgment for defendant.

W. W Brown, of Parsons, and Dallas W. Knapp, of Coffeyville, for appellant.

Harold McGugin, of Coffeyville, and D. Arthur Walker, of Arkansas City, for appellees.

HARVEY Justice.

These were actions for damages which grew out of a collision of an automobile with a freight train at a railroad crossing on a paved highway. Plaintiff in No. 34072 was a passenger in the automobile and the action was for her personal injuries. Plaintiffs in No. 34073 are the parents of Jackson Dodd, Jr., who was a passenger in the automobile and who was killed in the collision. It was an action for wrongful death. Plaintiff in No. 34074 is the father of plaintiff in the first case and the action was for medical, hospital, and other expenses he incurred for her because of her injuries in the collision. Though filed as separate actions they were tried together in the court below. In each case the plaintiff, or plaintiffs, recovered, the respective amounts being $1500, $2999 and $500. Defendant has appealed. In this court the cases are consolidated.

The general facts may be stated as follows: From Coffeyville, a city of the first class with a population of about 18,000, the defendant's railroad runs northeastwardly to Parsons about 30 miles away, and beyond. For possibly two miles from the city of Coffeyville it runs through the bottom or valley land of the Verdigris river. Through this valley defendant's roadbed is graded up two and one half feet, or more in places, above the general level of the land about it, and in some places where there is an unusually low place in the land trestle work is used in lieu of the graded roadbed. From the northeast corner of the city of Coffeyville a paved federal and state highway, known as U.S. 169, runs directly north for several miles and then northeast to the city of Cherryvale. A mile north of the city of Coffeyville it crosses the tracks of the defendant railroad, and about 2600 feet north of the crossing it crosses the Verdigris river on a bridge. This highway was graded, improved and paved by the state and federal highway departments in accordance with plans prepared by the state highway department and approved by the federal highway department. Through the river valley it is more nearly on the grade of the valley than is the roadbed of defendant. At a point 150 feet north of the railroad crossing the top of the pavement is two and one half feet lower than the top of the rails at the crossing. From this point south the pavement gradually rises until, at a point 30 or 35 feet north of the crossing, it is level with the top of the rails, continues level to about 30 feet south of the crossing, and then gradually declines as on the other side. Defendant had the railroad crossing signs required by statute, G.S.1935, 66-2,121, on each side of the crossing, and the state highway commission had erected the highway signs usual to indicate the approach to a railroad crossing. To the west of the highway and south of the railroad were several large tanks for the storage of oil. The closest one of these to the highway was about 150 feet. Also to the west of the highway and north of the railroad was an oil refinery. The closest part of that plant to the highway is not stated in the abstract. South of the railroad crossing and near the city was a city park, with the amusement appliances lighted and used at night.

Defendant's exhibits 1 and 3, reproduced here, are photographs of the crossing taken November 11, 1936:

(Image Omitted) Exhibit 1 was taken from a point 375 feet north of the crossing and Exhibit 3 from a point 100 feet north of the crossing. The train shown on the track in Exhibit 3 is not the one with which the automobile involved in this action collided, but the tank cars are similar to those in the freight train with which the automobile collided.

On the evening of November 9, 1936, four young people took a pleasure drive about the city of Coffeyville. The automobile in which they were riding was driven by L. C. Schaede. With him on the front seat was Opal Ross. Jackson Dodd, Jr., and Emma Bledsoe rode in the rear seat. About 9:30 o'clock Miss Ross was let out at her home. The other three continued to ride about town. Later in the evening, possibly about 11:00 o'clock, they drove north on U.S. 169 over this railroad and the Verdigris river bridge, possibly as far north as the town of Liberty, about seven miles from Coffeyville. At any rate, they were returning to Coffeyville shortly before midnight. As they were approaching the city one of defendant's freight trains, consisting of 63 freight cars, exclusive of the caboose and the engine and tender, was moving northeast out of Coffeyville at about 20 miles per hour. As the parties in the automobile approached this crossing the side windows of the automobile were down. After they had crossed the bridge over the Verdigris river the plaintiff, Miss Bledsoe, saw one or more box cars moving along the railroad track. She said nothing to Mr. Schaede about that. The automobile was going about 25 or 30 miles per hour. Without any slacking of speed the automobile was driven into the side of the moving freight train. It struck an oil tank car, the fortieth car counting from the front of the train, the twenty-third counting from the caboose. As a result of this collision Miss Bledsoe received the injuries for which her action was brought and Jackson Dodd, Jr. received injuries which resulted in his death. L. C. Schaede was not a witness in these cases. The record does not disclose to what extent he was injured, if at all, or whether he has an action pending against defendant.

Plaintiffs charged defendant with negligence in that no proper sign or warning was provided at this crossing. It was alleged that the crossing is located on a federal and state highway upon which there is especially heavy traffic in and out of Coffeyville to the north; that the crossing is an especially dangerous one in the nighttime, and that defendant knew that fact because of previous accidents which had happened at this crossing in the nighttime, and that considering the heavy traffic and this knowledge defendant was negligent in not maintaining an electric bell, alarm, light, or wigwag and/or an electric light at this crossing. Being near the city of Coffeyville it was alleged that electricity was readily obtainable. As further reasons why the crossing was especially dangerous at night it was alleged that the large storage tanks of the oil company were so situated that they cut off the view of a train on the track from one approaching the crossing from the north, and that the lights of the oil refinery and in the city of Coffeyville reflected on the glass of an enclosed automobile so as to impair the vision of the driver. It was further alleged that a large amount of the freight carried by defendant over its track is petroleum products carried in tank cars, which become greasy and black and blend with the black...