Brim v. Atchison, T. & S.F. Ry. Co.

• Decision Date: 09 July 1932
• Docket Number: 30717.
• Citation: 136 Kan. 159,12 P.2d 715
• Parties: BRIM et al. v. ATCHISON, T. & S. F. RY. CO.
• Court: Kansas Supreme Court

12 P.2d 715

136 Kan. 159

BRIM et al. v. ATCHISON, T. & S. F. RY. CO.

No. 30717.

Supreme Court of Kansas

July 9, 1932

Syllabus by the Court.

Specific finding as to particular acts of negligence defendant committed exonerates defendant of all other charges of negligence in petition.

Plaintiff having driven truck onto familiar railroad crossing without taking due precaution to ascertain whether train was approaching held contributorily negligent.

Instruction on presumption that deceased used ordinary care to ascertain whether he could safely cross railway tracks held improper where there was direct evidence to contrary.

1. Rule followed that, in an action for damages on various allegations of negligence, where the jury makes a specific finding as to what particular act or acts of negligence defendant committed, such finding exonerates the defendant of all other charges of negligence alleged in plaintiffs' petition.

2. Where a person was killed in a collision between his loaded motortruck and defendant's railway train at a railway crossing over a township road, and defendant's negligence as found by the jury was its failure to maintain the crossing in accordance with the standard prescribed by the statute (R S. 66--227), it is held that, when the deceased drove onto the crossing, with which he was familiar, without taking due precaution to ascertain that no train was approaching to imperil his safety, he committed an act of contributory negligence which barred a recovery of damages for the negligence of defendant.

3. An instruction that, in the absence of evidence, the law would presume that the deceased used ordinary care to ascertain that he could drive across the railway track in safety because of the natural instinct of self-preservation of a normal person, should not be given where there was in fact direct evidence to the contrary.

Appeal from District Court, Lyon County; Alonzo C. McCarty, Judge.

Action by Willma Esther Brim and others, minors, by John S. Forbeck their guardian, against the Atchison, Topeka & Santa Fé Railway Company. Judgment for the plaintiffs, and the defendant appeals.

Reversed and cause remanded, with instructions.

Wm. R. Smith, Alfred A. Scott, and C. J. Putt, all of Topeka, and W. L. Huggins, of Emporia, for appellant.

I. T. Richardson and C. C. McCullough, both of Emporia, for appellees.

DAWSON J.

Here is another railroad crossing case.

On December 16, 1930, one Blaine Byron Brim was killed at defendant's railway crossing on a township road about a mile east of Emporia. The railway thereabout runs nearly east and west and the township road north and south. There was a gravel pit at some distance south of the railway, and for a week or more the deceased had been engaged in hauling gravel in a motortruck from the pit to some point north of the railway. He hauled some twenty loads each day. It was while proceeding northward over the crossing with a truck lead of gravel that Brim was struck and killed by defendant's west-bound train.

This action was brought in behalf of the minor children of Brim. The petition charged that defendant negligently permitted growing vegetation on the right of way to obscure the view of an approaching train, that defendant failed to maintain the grade crossing in conformity with the statute, and failed to sound the whistle as a warning of the approaching train; and it was also alleged that defendant's employees were guilty of wantonness in operating the train.

Defendant's answer was a general denial and a plea of contributory negligence.

At the trial, there was testimony and photographic evidence showing to what extent a view of the approaching train would be obscured or cut off by a hedge and trees on the east side of the road south of the railway and showing the growth of weeds on and near the right of way. It appeared that defendant had failed to maintain the crossing at the exact standard prescribed by the statute (R. S. 66--227) in these respects: The road was level with the top of the rail for only 9 feet from the center of the track instead of 30 feet; the grade was 9.5 percent. for the first 100 feet south of the crossing, 9.3 percent. for the next 30 to 35 feet, and for the next 100 feet it was 4 percent. The statutory requirement was that the approaching grade should not exceed 6 percent. The width of the grade approaching the crossing from the south was from 14.4 feet to 17.6 feet. The ground level on which the approach was constructed was a natural swale. Beneath the graded approach was a culvert for drainage. The height of the grade above the natural ground level was 6 or 7 feet.

On the other allegations of negligence, the evidence failed to prove wantonness on the part of defendant's enginemen, and it was affirmatively disproved that there had been any failure to sound the whistle in conformity with the statute. It was also shown or admitted that the township road was dry on the day of the accident.

The jury returned a verdict for $4,750 in favor of plaintiffs, and answered special questions as follows:

"Q. 2. When Blaine Byron Brim, hereinafter in these questions called 'the deceased' was driving his automobile truck northward on the day of the accident and immediately at the intersection of the highway with the south line of the right of way of defendant company, what, if anything, prevented him from seeing the railroad crossing sign and the railroad track immediately to the north of him? Ans. Nothing.

"Q. 3. Had the deceased crossed this crossing frequently with the automobile truck which he was driving on the day of the accident in the weeks and months before the accident? Ans. Yes.

"Q. 4. Was this crossing and the crossing sign on the highway at this point in the same or similar condition which it had been in for several months prior to this accident? Ans. Yes.

"Q. 5. When the deceased, driving north on the highway immediately prior to the accident, was 240 feet south of the railroad crossing at which he was later struck, could he look north and see the railroad crossing sign and the track across the highway ahead of him? Ans. Yes.

"Q. 6. When the deceased reached a point fifty feet south of the center of the railroad track as he was driving north upon the highway immediately preceding the accident, and as he proceeded north to a point 30 feet south of the center of the railroad track, what, if anything, prevented him from looking east and north along the right of way and track of the defendant railway company and observing the train approaching from that direction? Ans. Brush and weeds.

"Q. 7. If you find the defendant railway company negligent, state in what particular act, acts, omission, or omissions such negligence consisted. Ans. Failure to meet requirements in reference to railway crossings as found in Revised Statutes of the State of Kansas, chap. 66, art. 2, § 227, being section 66--227, R. S. 1923, in the particulars of width and grade of the approaches of the crossing in question.

"Q. 8. If you find the defendant railway company negligent in the premises, state what employee or employees of the defendant railway company was guilty of such negligence. Ans. Such employee or employees of said A. T. & S. F. Ry. as are responsible for construction of said crossing.

"Q. 9. Did the deceased drive his truck in front of a moving railroad train without stopping to look or to listen or to take ordinary precautions for his safety before so doing? Ans. No.

"Q. 10. If you answer question No. 9 in the negative, then please state what the deceased did immediately before driving upon the railroad track to observe and to protect himself from the accident which caused his death? Ans. Looked and listened.

"Q. 11. Did the defendant's employees in charge of its engine drawing said train sound the whistle at a point approximately eighty rods from said crossing? Ans. Yes.

"Q. 12. Did the defendant's employees, in charge of said train, sound the whistle at any time at a distance of approximately eighty rods or less from said crossing? Ans. Yes.

"Q. 13. Could the injury to the deceased have been avoided by the exercise of reasonable care upon the part of the railway company, in keeping its right of way free from obstructions, and providing a reasonably safe crossing, including the grade and approach which the law of the State of Kansas requires of railway companies at public highway crossings? Ans. Yes.

"Q. 14. Could the injury to the deceased have been avoided by the exercise of reasonable care on the part of the employees, to-wit, the engineer or fireman, considering all the surrounding circumstances? Ans. No.

"Q. 15. Was not the injury to the deceased inflicted by and through the reckless and wanton conduct of the defendant's employees in charge of the engine? Ans. No."

Defendant moved to set aside certain findings on the ground that they lacked support in the evidence. This motion was denied, as were also defendant's motions for judgment on the special findings and for a new trial.

Judgment was entered for plaintiffs, and defendant assigns certain errors.

It will be observed that the negligence found by the jury lay in defendant's failure to conform to the statutory requirements in reference to railway crossings over township roads. This specific finding of negligence exonerated defendant from any and all other charges of negligence pleaded against it.

In Roberts v. Railway Co., 98 Kan. 705, 161 P. 590, the pertinent syllabus reads: "Where a recovery is sought by reason of several negligent acts of the defendant, and the jury in answer to a special question finds that the negligence upon which they base their verdict is a certain single act of the defendant, the finding, in...