Bollinger v. Schaff

• Decision Date: 10 March 1923
• Docket Number: 24,297
• Citation: 113 Kan. 124,213 P. 644
• Court: Kansas Supreme Court
• Parties: BERTHA BOLLINGER, Appellee, v. CHARLES E. SCHAFF, as Receiver of THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant

213 P. 644

113 Kan. 124

BERTHA BOLLINGER, Appellee, v. CHARLES E. SCHAFF, as Receiver of THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant

No. 24,297

Supreme Court of Kansas

March 10, 1923

Decided January, 1923.

Appeal from Bourbon district court; EDWARD C. GATES, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

NEGLIGENCE--Railroad Crossing--Contributory Negligence--Question for Jury. In an action for damages for personal injuries received at a railroad crossing on one of the main streets of a city, the evidence examined, and held, that the question of the contributory negligence of the plaintiff was properly left to the jury.

W. W Brown, and O. T. Atherton, both of Parsons, for the appellant.

B. Hudson, and Douglas Hudson, both of Fort Scott, for the appellee.

OPINION

HARVEY, J.:

This is an action for damages for personal injuries alleged to have been sustained by plaintiff because of the negligence of defendant at a railroad crossing on one of the principal streets of Fort Scott. There was a trial to a jury, special findings, and a verdict for plaintiff. The defendant appeals, alleging numerous errors, most of which are embodied in the contention that the plaintiff was guilty of contributory negligence as a matter of law.

National avenue, the principal north and south street of Fort Scott, a city of the first class, is crossed almost at right angles by the east and west lines of the defendant's railroad. There is much travel over the railroad crossing on this street for it is the only crossing to get out of or into town from the north; several auto trails are routed over it, and an actual count one morning showed 56 vehicles pass the crossing in fifteen minutes. The railroad has five tracks at this crossing; the main track and four side tracks north of it, the distance between the tracks being 9 1/2 feet. A city ordinance, passed in 1909, required the defendant to keep a flagman at this crossing from six o'clock in the morning to six o'clock in the evening, and the defendant had complied with this ordinance until some time in 1919 when, without permission from the city, it changed the flagman's hours so that he went on duty at nine o'clock in the morning and remained on duty until five o'clock in the evening; though there is some testimony that after this change the flagman was at the crossing occasionally before nine o'clock in the morning. It was the flagman's practice not to remain at the crossing all of the time during his hours of duty but would be about the depot, which was near, and where he performed the duties of a janitor, and he would go out to the crossing and perform his duties as a flagman when a train was passing.

The plaintiff lived in the country a few miles and drove a Ford touring car into town over this crossing practically every day, bringing milk, and bringing her daughter to school in the morning and coming for her in the evening and was thoroughly familiar with this crossing. She had frequently seen the flagman there when there was a train and had passed the crossing at various times in the day when the flagman was not there and there was no train.

On the day in question, the plaintiff was driving into town from the north, bringing her daughter to school. Shortly before reaching the crossing she overtook two little girls going to school and had them get in the car, the four riding in the front seat. She approached the crossing at seven miles per hour. On the north side track there was a freight train which had been cut in two so as to let vehicles pass along the street, the row of box cars extending up to the side of the street, or near it, on each side. On the next side track, the one nearest to the main track, was a box car about 70 feet east from the street. There is some conflict in the testimony as to which track the freight train was on that was cut in two, some witnesses saying it was on the track next to the main track, but we do not regard that as material now. The defendant's fast passenger train, scheduled [113 Kan. 126] at 43 miles per hour between stations, due at Fort Scott at 6:28, was coming in late, at 8:15, on the main track, from the east. Just before reaching the main track plaintiff saw the train, applied the brakes on her Ford and turned it to the west, (with the train) and struck the side of the engine back of the pilot. The Ford was partially wrecked and plaintiff injured.

The jury returned a general verdict for plaintiff for $ 1,000 and answered the following special questions:

"1. If you find for the plaintiff state on what ground or grounds of negligence you base your verdict? A. No flagman on duty. Train going too fast and obstruction of view by box cars.

"2. Did plaintiff stop her automobile to look for trains before she attempted to cross defendant's railroad tracks? A. No.

"3. At what rate of speed was the automobile traveling when eight feet north of defendants main line track? A. Seven miles per hour.

"4. How far in feet and inches was the north rail of defendants main line track from the south rail of defendants passing track along the east side of the National Avenue crossing? A. Nine feet and a few inches.

"5. How far east of the point of collision was the first box car on the passing track? A. Seventy-three feet.

"6. If you find that plaintiff's automobile struck the side of defendant's engine, then state how far back of the point of the engine pilot the automobile struck the engine. A. In our opinion six or eight feet from the pilot.

"7. At what rate of speed was train number 5 traveling at time of the collision? A. Twenty miles per hour.

"8. How far was the automobile from defendant's main line track when plaintiff first looked and saw the passenger train? A. Eight feet."

Appellant invokes the rule, repeatedly followed in this court, and stated in Railroad Co. v. Holland, 60 Kan. 209, 56 P. 6, as follows:

"A person who sees a railroad track upon which trains may pass at any time is already warned of danger, and it is the imperative duty of one about to cross the tracks of a railroad, at least, to look and listen for approaching trains. If he fails to look, when by looking he could see a coming train, and there is no excuse for such failure (italics ours), he will be deemed guilty of negligence per se, and not entitled to recover for injuries sustained in a collision with a train." (Syl. P 1.)

It will be noted that in this case there is no question about the negligence of defendant. It had voluntarily violated a reasonable and valid ordinance of the city by not having a flagman at this crossing at the hour of the injury. Considering the partial obstruction of view by the box cars the absence of the flagman in violation of the ordinance; the heavy traffic on this street; the train coming in late at 20 miles an hour, leaves no room for doubt upon this question. It is possible, in view of the situation of this crossing and the amount of traffic there, the...