Bradshaw v. (John Barton Payne)

• Decision Date: 10 June 1922
• Docket Number: 23,381
• Citation: 207 P. 802,111 Kan. 475
• Parties: JAMES W. BRADSHAW and ROSE BRADSHAW, Appellees, v. (JOHN BARTON PAYNE), JAMES C. DAVIS, Director-general of Railroads, as Agent, substituted, Appellant
• Court: Kansas Supreme Court

207 P. 802

111 Kan. 475

JAMES W. BRADSHAW and ROSE BRADSHAW, Appellees, v. (JOHN BARTON PAYNE), JAMES C. DAVIS, Director-general of Railroads, as Agent, substituted, Appellant

No. 23,381

Supreme Court of Kansas

June 10, 1922

Decided January, 1922.

Appeal from Labette district court; ELMER C. CLARK, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Kicking Uncontrolled Freight Car Over Street Crossing--Collision with Automobile. In an action by parents against a railroad company to recover for the death of a minor son who was riding as a guest of the driver of an automobile which was run into at a street crossing by a freight car, it is held that the evidence sustained a finding of negligence in kicking the freight car over a public street crossing uncontrolled and without a brakeman on top of the car to stop it with the hand brake if necessary.

2. SAME--Deceased and Driver of Auto Not Engaged in a Common Enterprise. The evidence considered and held sufficient to sustain a finding that the deceased, who was a minor about seventeen years of age, and the driver of the automobile were not engaged in a common enterprise so as to render the former chargeable with the negligence of the latter; the question being one of fact to be submitted to the jury.

3. SAME--No Contributory Negligence of Guest of Driver of Automobile. Assuming that the driver of the automobile failed to exercise due diligence to stop before attempting to cross the railroad track in order to discover whether there was a car or train approaching, the deceased being a mere guest of the driver was not, as a matter of law, negligent in failing to observe the approach of the car or failing to insist that the automobile be stopped in order to ascertain whether the car was approaching.

4. SAME--Contributory Negligence--Age, Intelligence and Capacity of Deceased to be Considered. In such a case it was not error for the court to instruct that in determining the question of contributory negligence the jury must take into consideration the age, intelligence, and capacity of the deceased, nor was it error to add this qualification to the statement in other instructions of the rule respecting contributory negligence.

5. SAME--Ordinary Care Required in Kicking a Freight Car Upon the Track Without Engine Attached. An instruction was given that in breaking up freight trains it is very common for switchmen to kick a car in upon a track without an engine attached, but that in doing so ordinary care and diligence require that at least one man ride the car and be in a position to, and give timely warning at a crossing, and in position to control the car by the use of a brake or otherwise. Held, the instruction was justified by the evidence and the circumstances concerning the surroundings of the crossing at the time of the collision.

6. SAME--Measure of Damages--Verdict and Findings of Jury Not Excessive. In an action by parents to recover for the death of a son about seventeen years of age there was evidence showing that the young man was of more than ordinary development, mentally and physically, industrious, healthy; when not in school earned a man's wages on his father's farm; contributed his earnings to his parents when working for neighboring farmers; had frequently said he intended to remain with his parents until the farm was paid for. Held, that an allowance of $ 1,500 for his probable earnings from the time of his death until he was twenty-one years of age, and $ 5,000 as compensation for the loss of earnings which he would probably have contributed to the parents after his majority, is not excessive.

W. W. Brown, O. T. Atherton, and E. L. Burton, all of Parsons, for the appellant.

W. D. Atkinson, of Parsons, for the appellees.

Porter J. Porter, J. dissenting in part.

OPINION

PORTER, J.:

Claude B. Bradshaw, about seventeen years of age, was one of a party of boys who had been on a coon-hunting trip to the Neosho river east of Parsons, and who were returning to the city between two and three o'clock in the morning, traveling in an automobile owned and operated by Frank Miller, when the car was struck at a street crossing by a shunted freight car of defendant's, resulting in the death of young Bradshaw. In this action the parents recovered a judgment for damages, and the defendant appeals.

The switch yards of defendant in the city of Parsons extend north and south for a distance of more than a mile, and cross Crawford avenue, which runs east and west; twenty-four tracks cross the avenue, and are in use day and night in the operation of engines and switch cars. The petition alleged that the automobile approached the street crossing from the east at a speed of about five miles an hour; that a large building immediately on the south and adjacent to the track obstructed the view from the east; that a freight car approaching from the south at fifteen miles an hour, collided with the automobile. It alleged that it was the duty of defendant to have moved the car at a lower rate of speed, coupled to and controlled by a switch engine, to have rung the bell of the engine, and to have had an employee on top of the car with a light to warn persons, and who could have controlled the car by the use of the hand brake. The negligence charged was kicking the car across the avenue uncontrolled by a switch engine or hand brake and without signal or warning, and failure to maintain a watchman.

The answer, besides a general denial, alleged that Claude Bradshaw's own negligence in failing, on approaching the crossing, to look or listen or to make any effort to have the automobile stopped in order to make proper observations, was the proximate cause of his death; that the driver was likewise negligent, and that deceased and the driver were engaged in a common enterprise, and that the driver was the agent of the deceased in operating the automobile. The reply was a verified general denial, alleging further, that Claude Bradshaw was a passenger, with no control over the automobile, and denying that the driver was his agent.

The jury returned a verdict in the sum of $ 6,500 in plaintiffs' favor, and special findings that the acts of negligence on which they based their verdict were: "a car uncontrolled; buildings, obstructed view." The obstruction of the view by buildings was not alleged as one of the acts of negligence relied upon. The jury also found that the automobile approached the point of collision at five, and the freight car at twelve miles per hour; that the automobile could have been stopped within ten feet. They also returned the following answers to special questions asked by the defendant:

"5. How far south of said crossing could the occupants of said automobile have seen a freight car approaching on the east house track, from the following point eastward along the traveled portion of Crawford avenue:

"From a point 20 feet eastward of the point of collision? Answer: 42 feet south of point of collision.

"6. How far south of said crossing could the occupants of said automobile have seen a freight car approaching on the east house track, from the following point eastward along the traveled portion of Crawford avenue?

"From a point 30 feet eastward of the point of collision? Answer: 32 feet south of point of collision.

"7. State what efforts, if any, deceased made to have the driver stop the automobile before going upon said crossing? Answer: None.

"8. If you find for the plaintiffs, state what amount you allow for loss of earnings prior to his reaching the age of 21 years? Answer: $ 1,500.

"9. What prevented the driver and the deceased from seeing the approaching freight car in time to have stopped, had they looked to a point 25 feet east of the point of collision? Answer: Swift's building; darkness and glare of arc light.

"10. Was the driver of said automobile, and said deceased, engaged in a mutual pleasure trip at the time of the collision? Answer: Yes."

To questions submitted by plaintiffs they answered that Claude Bradshaw was at the time of the accident a guest in the automobile, and also that he did nothing to direct its operation.

The track on which the box car moved was seventeen and a half feet west from the northwest corner of Swift's poultry warehouse, which was located east of the tracks, and was the last obstruction which prevented a view toward the south of the tracks upon which the freight car approached. The testimony of the other boys who were in the car shows that as they approached the crossing no one in the car saw or heard the freight car until the switchman shouted to them when they all looked up and saw the approaching car and the switchman hanging on the side with a lantern in his hand. Their testimony was that they were looking to the north and south and listening for approaching cars. They were also looking ahead and expecting to see a flagman; none was there. Brakeman Crane, an employee of defendant, who was hanging on the lower step of the northeast corner of the approaching car with a lantern on his arm, called out to the occupants of the automobile and this was the first warning they had of the approach of the car. Willie Bradshaw, a brother of the deceased, said that when he saw the box car it was twenty-five or thirty feet from the sidewalk line and their automobile was eight or ten feet from the track; the automobile slowed down when the brakeman called; then the driver thought it was better to increase the speed and try to get across. The freight car hit the rear wheel of the automobile, shoved the car around and Claude was found lying on the track on the north side of the automobile. This witness testified that: "Before the switchman holloed, I hadn't heard any engine or hadn't seen any...