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

• Decision Date: 24 January 1942
• Docket Number: 35389.
• Citation: 154 Kan. 713,121 P.2d 208
• Parties: CHRISTIE v. ATCHISON, T. & S. F. RY. CO. et al.
• Court: Kansas Supreme Court

121 P.2d 208

154 Kan. 713

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

No. 35389.

Supreme Court of Kansas

January 24, 1942

Rehearing Denied April 14, 1942.

Syllabus by the Court.

On appeal from judgment sustaining demurrer to plaintiff's petition, petition must be liberally construed in plaintiff's favor and every reasonable intendment accorded in her behalf.

An automobile guest must exercise reasonable care and precaution for his own safety, and must warn driver of imminent danger apparent to one exercising such care and precaution

In automobile guest passenger's action against railway company for injuries sustained in crossing collision, action of motorist in deliberately stopping automobile on one of two tracks to await passing of train on the other track constituted negligence which was proximate cause of accident occurring when train on the track on which the automobile was stopped struck the automobile.

In automobile guest's action against railway company for injuries sustained when motorist stopped automobile on one of two tracks to await passing of train on the other track, and train on track on which automobile was stopped struck automobile, guest who knew before collision that automobile was approaching crossing, and who did not look to see where automobile stopped, and who did not give driver any warning of possible danger, was contributorily negligent for failure to exercise reasonable care and precaution for her own protection and to warn driver of imminent danger apparent to one exercising such care and caution.

1. A guest riding in an automobile is bound to exercise reasonable care and precaution for his own protection and to warn the driver of imminent danger apparent to one exercising such care and precaution.

2. In an action for damages for personal injuries resulting from a railway crossing accident, the petition is examined and it is held that under the allegations set forth in the opinion, the act of the driver of the automobile in which the plaintiff was riding, in stopping his car upon one of two tracks to await the passing of a train on the other track, constituted negligence and was the proximate cause of the accident; and it is further held that the plaintiff was guilty of contributory negligence under the rule stated in paragraph 1 of this syllabus.

Appeal from District Court, Sedgwick County, Division No. 2; Robert L. NeSmith, Judge.

Action by Jane Christie, by her mother and next friend, Bertha M Christie, against the Atchison, Topeka & Santa Fe Railway Company, and others, for injuries sustained when the automobile in which the plaintiff was riding was struck by a train at a railway crossing. From a judgment sustaining a demurrer to the plaintiff's amended petition, the plaintiff appeals.

Kenneth K. Cox, of Wichita, for appellant.

W. E Stanley and William C. Hook, both of Wichita, and Bruce Hurd C. J. Putt, and Robert M. Clark, all of Topeka, for appellee.

HOCH Justice.

This case arises out of an accident at a railway crossing. Appellant was injured when the auto in which she was riding was struck by a train. The appeal is from an order sustaining a demurrer to an amended petition in which she sought recovery for damages. The essential questions are whether, under the allegations of the petition, appellant was guilty of contributory negligence, and whether any alleged negligence on the part of the railway company was the proximate cause of appellant's injuries.

The accident took place in Wichita, Kansas, at the intersection where the Santa Fe railway tracks cross Lincoln street, a well traveled thoroughfare. It occurred at about 8:45 p. m. on February 7, 1939. Appellant was riding as a guest in an auto driven by Herbert Moore. Milton Hamm was also a guest passenger and both guests were riding in the front seat with the driver. Appellant alleged in the petition that she was sitting next to the driver; that she was not familiar with the street or "with the circumstances and surroundings thereof" and as far as she could recall had "never previously been at or near said place"; that as the auto was going east on Lincoln street a train was going south on the east track of two tracks which cross the street "in a slight northwesterly direction"; that "the driver of said automobile stopped the same on the west track approximately midway between the center of the paved portion of said street and the south curb line thereof while said train was passing"; that she did not know that there were two railroad tracks there, and did not know that the automobile had stopped on a railroad track; that "while said automobile was so stopped and as the rear end of said train going south was approximately at the north line of the paved portion of said Lincoln street" another train, a freight train, going north on the west track upon which the automobile had stopped struck the automobile "waiting at said place," knocked it a distance of about one hundred and ninety feet along the track and that she was seriously and permanently injured, as fully described in the petition. The acts of negligence alleged on the part of the railway company were summarized in the petition as follows:

"(1) By causing said train to be propelled into said intersection at an excessive, dangerous and negligent rate of speed;

"(2) By moving said train and locomotive across Lincoln street at said place in the city of Wichita at a

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