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

• Decision Date: 06 March 1915
• Docket Number: 19060.[d1]
• Citation: 94 Kan. 328,146 P. 1142
• Parties: BUTTS v. ATCHISON, T. & S. F. RY. CO.
• Court: Kansas Supreme Court

146 P. 1142

94 Kan. 328

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

No. 19060.^[d1]

Supreme Court of Kansas

March 6, 1915

Syllabus

A traveler, whose deafness prevented him from hearing the warning signals of an approaching train at a dangerous crossing with which he was familiar, drove upon the track and was struck by the train and injured. His failure to stop and look from a position where he could have seen the train in time to avoid the injury is contributory negligence which will prevent his recovery in an action against the railway company.

Johnston, C. J., and West, J., dissenting.

Appeal from District Court, Harvey County.

Action by A. Frank Butts against the Atchison, Topeka & Santa Fé Railway Company. From judgment for plaintiff defendant appeals. Reversed and remanded, with directions to render judgment for defendant.

Wm. R Smith, O. J. Wood, and A. A. Scott, all of Topeka, C. S. Bowman, of Newton, and Wm. Osmond, of Great Bend, for appellant.

Branine & Hart, of Newton, for appellee.

OPINION

PORTER, J.

This is a railway crossing case in which the plaintiff recovered a judgment, from which the defendant appeals.

The material facts are not in dispute. They appear from the plaintiff’s testimony, as well as by the special findings of the jury. The accident occurred in the railway yards at Newton, about half a mile southwest of the station where First street crosses 12 tracks at an angle of about 45 degrees. It occurred on the eighth of these tracks, counting from where the plaintiff approached the right of way. It was in the middle of the afternoon of a bright clear day in September. The plaintiff was going in a southeasterly direction, and was driving a horse and light road wagon. He was very deaf. He was familiar with the crossing, and had traveled over it every day for several years. The train which struck him was a passenger train coming from the southwest, and the jury found that it was running at an excessive rate of speed. The engine bell was ringing from the time the train entered the city limits up to the time of the accident, but, on account of the plaintiff’s deafness, he was unable to hear it. After coming upon the right of way there was a clear view of the railway tracks for a distance of about a mile southwest, unless the view was temporarily obstructed by the presence of cars or engines upon some of the tracks. The obstructions which prevented the plaintiff from seeing the approach of the train when he first came upon the right of way consisted of cars standing on what is known as the "stockyards track," and also a moving switch engine with some cars attached which were upon the second track from the place of the accident. After reaching this second track and passing the switch engine, plaintiff had an unobstructed view for one-half mile of the track upon which the passenger train was approaching. It was 28 feet from the track where the switch engine was to the track where he was struck, looking at right angles, but, if the plaintiff followed the center of the street in the general direction he was going, the distance was 48 feet between the track upon which the switch engine stood and the track where the accident occurred. The plaintiff testified that he was looking and watching for trains, but the undisputed facts disclosed by his evidence show that this cannot be true. His horse’s head was over the first rail of the track when plaintiff discovered the train. The plat introduced by the plaintiff showing the location of the tracks, and his own evidence and that of other witnesses who testified for him show beyond controversy that he could have seen the passenger train if he had looked after he reached the track where the switch engine had obstructed his view. He was then at least 40 feet from the point at which he testified he first saw it.

The jury found that the railway company was negligent in running its train at an excessive rate of speed. Conceding the negligence of the company as established, the plaintiff’s own negligence, under repeated decisions of this court, prevents his recovery. The jury made a finding that after the plaintiff entered upon the right of way there was no place where, if he had kept a constant lookout, he would have seen the approach of the train in time to avoid the accident, but this finding is in direct conflict with the undisputed facts as disclosed by all the testimony. The plaintiff testified that he first saw the approach of the train when his horse’s head was over the first rail of the track. The track upon which the switch engine was moving, and which had up to that time obstructed his view, was 28 feet in a direct line from...