Bunton v. The Atchison

• Decision Date: 10 March 1917
• Docket Number: 20,741
• Citation: 163 P. 801,100 Kan. 165
• Court: Kansas Supreme Court
• Parties: CLYDE BUNTON, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

163 P. 801

100 Kan. 165

CLYDE BUNTON, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

No. 20,741

Supreme Court of Kansas

March 10, 1917

Decided January, 1917.

Appeal from Sedgwick district court, division No. 1; THOMAS C WILSON, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. AUTOMOBILE--Crossing Railroad Track--Duty of Driver--"Look and Listen." Where the jury finds that there is nothing to obstruct the view of a person approaching a railway crossing, nothing to prevent him seeing a train for a quarter of a mile or more, such finding in effect is an expression of the jury's disbelief of his evidence that he looked and listened and saw no train approaching.

2. SAME -- Crossing Railroad Tracks -- Findings Show Contributory Negligence Barring Recovery. Where a person attempts to drive an automobile over a railroad crossing in front of a fast speeding train which he could have seen approaching for a distance of a quarter of a mile or more, and the crossing grade is muddy, steep and slippery, and has a depression of three inches between the rails, whereby his engine loses power and stops in the depression between the rails, and the train is then so near that it can not be stopped in time to avoid a collision, such person is guilty of contributory negligence which bars his recovery for damages notwithstanding the negligence of the railway company in maintaining the defective crossing.

William R. Smith, Owen J. Wood, Alfred A. Scott, and Harlow Hurley, all of Topeka, for the appellant.

Clyde Souders, and Otto Souders, both of Wichita, for the appellee.

OPINION

DAWSON, J.:

This case adds another instance to the long and melancholy chronicle of railroad-crossing accidents. While the plaintiff and his wife were crossing the defendant's railroad on a rural highway their automobile engine stopped owing to a defect in the crossing, and a Santa Fe train plowed into them and killed the plaintiff's wife; and this action was brought by the plaintiff husband, charging the defendant railway company with the negligence which brought about her death.

Plaintiff alleged that the crossing was defective in that the grade approaching the crossing was too steep; that there was a mudhole at the foot of the grade caused by defendant's negligent drainage, and that there was a depression of about three inches inside the planking between the rails, and that this condition of the crossing had existed for a long time. He also alleged that the day was cloudy and foggy, and a light rain was falling, and the wind was blowing from the south. The plaintiff had chains on his automobile tires, and approached the crossing from the east on low gear--

"That on account of the said mudhole, and the steepness of the said grade and its slipperiness, the automobile of the plaintiff lost power and when the front wheels struck the ground after dropping the three inches on account of the ground between the planks being lower than the planks the said jolt stopped the said car with the front wheels over the east rail and plank. That while in the said position one of the trains of the defendant . . . came from the north at a very high and dangerous rate of speed, to wit: about 60 miles an hour and struck the automobile of the plaintiff and the plaintiff and his wife and threw the said automobile, the plaintiff and plaintiff's wife to the south and east, the wife of the plaintiff being thrown about 60 feet from the point where she was struck. That the said striking by the said train and the throwing of the plaintiff's wife and the force with which she struck the ground killed her. That had the said automobile not been slowed down and stopped, as aforesaid, by the condition of the said mudhole and the said crossing the said automobile and the plaintiff and plaintiff's wife would have crossed the said tracks in safety, before the said train arrived at the said crossing."

The general verdict was for the plaintiff, and the jury answered special questions:

"1. Q. If you find that any negligence of defendant caused the collision in question, state in what such negligence consisted. Ans. In defective crossing.

"Q. 3. If you find that the crossing was defective was one of the defects in the crossing the fact that the railroad company had permitted the space between the planks running lengthwise of and inside the rails to become from two to four inches lower than the tops of the planks? A. Yes.

"Q. 4. If you find that the crossing was defective, was the crossing defective in this, that it was too narrow and that the approach from the east thereto was too steep? A. Yes.

"Q. 10. Did the plaintiff and his wife exercise ordinary care and reasonable prudence in attempting to cross the railroad track at the time and place where the accident happened, under all the circumstances and facts connected with this particular crossing? A. Yes."

Certain other special findings in response to defendant's questions were made:

"2. Q. State the distance a train could have been seen approaching from the northward in the daytime by a person looking for same standing in the public highway 20 feet east of the east rail of said railroad track. Ans. About a quarter mile.

"Also by one standing in the highway 30 feet east of said east rail. Ans. About a quarter mile.

"Also by one standing in the highway about 60 feet east of said rail. Ans. About a quarter mile unless obscured by trees.

"Also by one standing in the highway 75 feet east of said east rail. Ans. About a quarter mile unless obscured by trees.

"Also by one standing in the highway about 175 to 180 feet east of said east rail. Ans. About a quarter of a mile unless obscured by trees.

"3. Q. How far was plaintiff from the crossing when he first saw the approaching train. Ans. He was on the track.

"4. Q. If a person were traveling westward in the daytime along the public highway in question for several hundred feet west [east] of the crossing in question, could they have seen a railroad train at various points while it would be moving between the crossing and a half mile north of the crossing, providing such person were taking the pains to carefully look for same? Ans. Yes.

"Substitute for No. 5. How far could the rumble and noise of the approaching train in question have been heard by one carefully listening for same while stationed at or near the crossing in question at the time in question. Ans. Don't think one could hear train while driving car and wind blowing from the south as it was.

"6. Q. After the engineer or fireman first discovered that the automobile would probably not be stopped before going upon the crossing, what could they have done that would have prevented the collision? Ans. Nothing.

"7. Q. Had plaintiff passed over this crossing as often as twice a month for three years prior to the time of the collision in question? Ans. Yes.

"10. Q. Was the railroad track straight and the country level for a mile north and south of said crossing? Ans. Yes."

The substance of defendant's assignment of errors is that the plaintiff's wife met her death through the sole negligence of the defendant, and that there was error in the trial court's instructions.

The duty to keep a sharp lookout for trains at a public crossing has often been expounded by this court. A railroad crossing is itself a danger signal. One who proposes to cross a railroad must look and listen. It is not required, in this state, that a person must necessarily stop, in order to look and listen, unless the surroundings and circumstances demand that unusual prudence. If the circumstances do demand such prudence, then there is a duty to stop, look and listen. ( Wehe v. Railway Co., 97 Kan. 794, 156 P. 742.) While the plaintiff testified that h...