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

• Decision Date: 29 January 1938
• Docket Number: 33690.
• Citation: 147 Kan. 192,75 P.2d 280
• Parties: BUCHHEIN v. ATCHISON, T. & S. F. RY. CO.
• Court: Kansas Supreme Court

75 P.2d 280

147 Kan. 192

BUCHHEIN v. ATCHISON, T. & S. F. RY. CO.

No. 33690.

Supreme Court of Kansas

January 29, 1938

Syllabus by the Court.

The doctrine of last clear chance is not applicable so long as plaintiff's contributory negligence continues.

In ruling on demurrer, trial court was required to view plaintiff's evidence in light most favorable to him.

Where adult occupant riding on side of automobile from which train came failed to look for approaching train and warn driver of its presence, although he had view of track for distance of about 1,000 feet at distance of 20 feet from track, and automobile was traveling only about 10 miles per hour occupant was contributorily negligent and could not recover from railroad for injuries sustained when automobile was struck by train.

The doctrine of "last clear chance" is a rule of law which makes the defendant liable where plaintiff, through his own negligence, has placed himself in a place of danger from which he cannot extricate himself, and where defendant saw or should have seen situation of plaintiff in time to avoid injuring him.

Where negligence of occupant of automobile, struck by train at crossing, in failing to look for train which he could have seen, continued until automobile was upon crossing, and where automobile was not stalled at any time and so was not entrapped, last clear chance doctrine was not applicable as basis for recovery by occupant from railroad for injuries sustained.

1. A mature person who attempts to cross a railroad track without taking any precautions for his own safety, while riding in an automobile with another who is driving, cannot recover damages from the railroad company for injuries sustained in a collision with a train on the track, when by looking he could have seen the approaching train in time to have warned the driver of the danger. Kirby v. Railway Co., 106 Kan 163, 186 P. 744, 18 A.L.R. 299, followed.

2. The doctrine of last clear chance does not arise so long as the contributory negligence of the plaintiff continues.

3. The doctrine of last clear chance is a rule of law which makes the defendant liable where the plaintiff through his own negligence has placed himself in a place of danger from which he cannot extricate himself and where the defendant saw, or should have seen, the situation of the plaintiff in time to avoid injuring him.

4. The record in an action for damages for injuries sustained in a collision at a railway crossing examined, and held, the demurrer to plaintiff's evidence was properly sustained.

Appeal from District Court, Leavenworth County; James N. Wendorff Judge.

Action by Robert Buchhein against the Atchison, Topeka & Santa Fe Railway Company for injuries sustained by plaintiff when the automobile in which he was riding was struck by defendant's train at a crossing. From an order sustaining a demurrer to his evidence, plaintiff appeals.

John J. Riling and Edw. T. Riling, both of Lawrence, for appellant.

Bruce Hurd, C. J. Putt, and Robert M. Clark, all of Topeka, and Raymond F. Rice, of Lawrence, for appellee.

WEDELL Justice.

This was an action for damages for injuries sustained by the plaintiff when the automobile in which he was riding was struck by defendant's train at a township road crossing. Plaintiff appeals from the order sustaining a demurrer to his evidence.

The essential facts as disclosed by plaintiff's own testimony were: Plaintiff's friend, Orville Loftin, owned and operated a 1926 or 1927 model Whippet coupé in which they were returning to Lawrence after having finished a day's work on the Mitchell farm located about eight miles northwest of the city of Lawrence; it was about 5 o'clock in the afternoon when they left the farm, which was approximately one mile from the crossing; the train came from the west, and plaintiff and his friend approached the crossing from the north; plaintiff was seated on the right or west side of the car; there was no glass in either the east or west car window; the parties were familiar with the railroad crossing as they had crossed it the previous day; plaintiff was familiar with the train schedules on the day of the accident; it had rained somewhat and the road was slightly slippery; there were no chains on the tires; they traveled from the Mitchell farm to the crossing at the rate of about 20 miles per hour until they reached a point about 20 or 25 feet north of the track; the accident occurred on the 15th day of August, 1934, and there was a field of growing corn west of the highway which obscured plaintiff's vision to the west until they reached the point 20 or 25 feet north of the track; at that point plaintiff looked west and could see about 800 feet along the track, but he saw nothing; the driver shifted into second gear when they were about 15 to 20 feet north of the north rail; he could then have seen 1,000 feet up the track; there was a big warning sign, "Look Out for the Cars," on the north side of the track; plaintiff, however, knew the track was there without the warning sign and knew that a scheduled train was due there at about that time; on their approach to the crossing, the parties had been discussing the question of whether the train had passed; he knew it was up to him to look for a train approaching from his side; he had nothing to do except watch for the train; when they shifted gears, they did not come to a stop but slowed down to probably 6 or 8 miles an hour; perhaps they did not slow down more than 10 miles per hour; after they shifted gears they could see 1,000 to 1,200 feet up the track; there was then no train in sight; there were some small ruts just north of the crossing and they had some trouble getting up, but the car did not stop at any time; after they shifted gears, the car naturally picked right up; the engine was not killed and the car did not stall on the track; plaintiff did not look west from the time they shifted gears until they were on about the middle of the track; they heard no bell or signal; the wheels spun a little in the ruts; he looked to the west when they were about halfway across the tracks; the train was then between two and four hundred feet west of them; it was coming at a terrific rate of speed;...