Blue v. The Atchison

• Decision Date: 06 October 1928
• Docket Number: 28,245
• Citation: 270 P. 588,126 Kan. 635
• Court: Kansas Supreme Court
• Parties: MARGUERITE BLUE, Appellant, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellee

270 P. 588

126 Kan. 635

MARGUERITE BLUE, Appellant, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellee

No. 28,245

Supreme Court of Kansas

October 6, 1928

Decided July, 1928

Appeal from Labette district court; WILLIAM D. ATKINSON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

RAILROADS--Accident at Crossing--Contributory Negligence of Wife Riding With Husband. The answers of jury to questions submitted show that the plaintiff riding in an automobile driven by her husband was guilty of such contributory negligence as prevents her from recovering for the injuries sustained by her in a collision between the automobile and a coal car operated by the defendant.

Carl V Rice, of Parsons, for the appellant.

William R. Smith, Owen J. Wood, Alfred A. Scott and Alfred G. Armstrong, all of Topeka, for the appellee.

OPINION

MARSHALL, J.:

This is an action to recover damages for injuries sustained by the plaintiff in a crossing collision between a coal car being switched by the defendant and an automobile in which the plaintiff was riding and which was driven by her husband. The cause was submitted to a jury, which returned a verdict in favor of the plaintiff for $ 1,000 and answered special questions as follows:

"1. Was the driver of the automobile, C. M. Blue, intoxicated immediately before the collision? Answer: No.

"2. Was the plaintiff, Marguerite Blue, intoxicated immediately before the collision? Answer: No.

"3. In what distance could the automobile have been stopped when it was at a point 150 feet north of the point of collision? Answer: Fifty to sixty feet.

"4. In what distance could the automobile have been stopped when it was at a point 75 feet north of the point of collision? Answer: Twenty to thirty feet.

"5. If your verdict is against the defendant, state in what the negligence of the defendant consisted? Answer: Not proper control of the car.

"6. At what speed was the automobile in question traveling when it was at a point 150 feet north of the point of collision? Answer: Twenty-five miles.

"7. At what speed was the automobile in question traveling when it was at a point 75 feet north of the point of collision? Answer: Twelve miles.

"8. How far to the east of the point of collision could the plaintiff, Marguerite Blue, have seen the approaching railway car from a point 150 feet north of the point of collision? Answer: One hundred and fifty feet.

"9. How far to the east of the point of collision could the plaintiff, Marguerite Blue, have seen the approaching railway car from a point 75 feet north of the point of collision? Answer: Two hundred feet.

"10. At what speed did the coal car approach the point of collision? Answer: Three to five miles."

On the motion of defendant, the verdict was set aside, and judgment was rendered in favor of the defendant on the special findings of the jury. The plaintiff appeals.

The only question argued is: Was judgment rightfully rendered in favor of the defendant on the answers to special questions submitted to the jury? A brief analysis of the answers is necessary. When the automobile in which the plaintiff was riding was 150 feet north of the point of collision, she could have seen the approaching coal car 150 feet away from that point, and the automobile could have been stopped within 50 or 60 feet. The coal car was then 30 feet from that point. When the automobile was 75 feet north of the point of collision, the plaintiff could have seen the approaching coal car 200 feet away from that point, and the automobile could have been stopped within 20 to 30 feet. The coal car was...