Clark v. Missouri Pacific Railroad Company
| Decision Date | 05 April 1924 |
| Docket Number | 25,189,25,190 |
| Parties | MAY CLARK, a Minor, by Her Father and Next Friend, ORA CLARK, Appellee, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant. ABBIE HATCH, Appellee, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant |
| Court | Kansas Supreme Court |
Decided January, 1924.
Appeal from Cowley district court; OLIVER P. FULLER, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. NEGLIGENCE--Railroad Crossing--Injury to Guests of Driver of Automobile--Guests and Driver Not Engaged in Common Enterprise. Guests of a driver of an automobile cannot be regarded as engaged with him in a common enterprise so that each is to be regarded as responsible for the acts of the other, unless each has an equal right of control.
2. SAME--Duty of Guests in Automobile--Negligence of Driver Not Imputed to Guests. Rule followed that while guests riding with a driver of an automobile must exercise reasonable care for their own safety the negligence of the driver cannot be imputed to the guests.
3. SAME--Evidence Supports Findings and Verdict. The evidence examined and held to be sufficient to support the findings and verdict of the jury.
W. P Waggener, J. M. Challis, both of Atchison, and C. W. Roberts, of Winfield, for the appellant.
Alfred M. Jackson, Schuyler C. Bloss, and George T. McNeish, all of Winfield, for the appellees.
May Clark and Abbie Hatch each brought an action against the Missouri Pacific Railway to recover for injuries sustained by them through the alleged negligence of the railway company, in which a collision occurred upon a railway crossing. Each recovered a judgment from which defendant appeals.
Both plaintiffs were riding in an automobile owned and driven eastward along a highway by W. T. Wise, and were struck by an extra train which approached the crossing from the northeast traveling diagonally towards the southwest. It was alleged that the defendant negligently allowed a growth of hedge, underbrush, weeds and other vegetation upon its right of way which obstructed a view of an approaching train by travelers upon the highway until they entered upon the railroad track, and also that the defendant negligently failed to sound a bell or whistle or give any warning as the train approached the dangerous crossing.
The defendant answered with a general denial and that the plaintiffs and their driver were engaged in a joint enterprise, that they drove upon the crossing without looking or listening for an approaching train or taking any precautions for their own safety and that plaintiffs did not request the driver to stop, look or listen when the senses of sight and hearing were available. The mother of May Clark was in a hospital in Winfield, and the plaintiffs arranged with Wise who owned the automobile to take them to the hospital. The jury found that those in the automobile had no unobstructed view of the train until they were in a place of danger, that when the trainmen discovered the automobile on the crossing there was nothing that could be done to prevent the accident, that at the speed the train was moving it could have been stopped in a distance of from three to four hundred feet, that the noise of the operation of the automobile did not interfere with the occupants hearing train signals, that if the automobile had been stopped when its front wheels were within ten feet of the nearest rail and an observation made, the accident would not have happened. That the plaintiffs could not have done anything to prevent the collision, that the trainmen could have prevented collision by blowing a whistle and ringing a bell, and that the act of negligence upon which the finding against defendant was made was in not removing obstructions from the right of way.
The cases were tried together upon the same evidence and both appeals have been submitted on the same abstract of the evidence. It is insisted that defendant's demurrer to plaintiffs' evidence should have been sustained and it is said to be impossible to give credence to the testimony of the plaintiffs. Another contention is that the occupants of the automobile were engaged in a joint enterprise, that there was identity of interest of the occupants of the automobile and it was the duty of each plaintiff to take precautions for her safety and that they cannot escape this responsibility even if the negligence was that of the driver.
The first contention of the defendant is that the court erred in overruling its demurrer to plaintiffs' evidence, but this contention cannot be upheld. Under any view of the testimony it must be held that there was sufficient evidence to take the case to the jury. Along the same line there was a request for a peremptory...
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