Clark v. The Atchinson

• Decision Date: 08 December 1928
• Docket Number: 28,010
• Citation: 272 P. 128,127 Kan. 1
• Court: Kansas Supreme Court
• Parties: P. E. CLARK, Appellant, v. THE ATCHINSON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellee

272 P. 128

127 Kan. 1

P. E. CLARK, Appellant, v. THE ATCHINSON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellee

No. 28,010

Supreme Court of Kansas

December 8, 1928

Decided July, 1928.

Appeal from Clark district court; KARL MILLER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS--Accident at Crossing--Failure to Use Ordinary Care. The plaintiff driving a horse team attached to a grain binder approached a railroad crossing with which he was familiar, where his view was obstructed by a station house so that he could not see a train coming from that direction until the team was entering upon the track. He slowed down the team and states that he looked and listened for a train, but did not stop his team or go forward to a point where a view of the track could be had and where he could have ascertained that a train was approaching if he had done so. He drove the team and vehicle upon the track when the train, traveling at a rate of twenty miles an hour, was only about three hundred feet away, and sustained an injury in the collision that followed. Held, that the plaintiff failed to use ordinary care for his own protection, and that his negligence bars an action for the injury.

2. SAME--Culpable Negligence of Engineer--Choice of Conduct in Emergency. The negligence imputed to defendant was that the engineer, upon discovering plaintiff approaching the track, blew the whistle before applying the brakes and, under the circumstances stated in the opinion, it is held that the action of the engineer in the emergency that confronted him cannot be regarded as culpable negligence.

Robert C. Mayse, of Ashland, and E. C. Minner, of Dodge City, for the appellant.

William R. Smith, Owen J. Wood, Alfred A. Scott, Alfred G. Armstrong, all of Topeka, and William Osmond, of Great Bend, for the appellee.

Johnston, C. J. Harvey, J., not sitting.

OPINION

JOHNSTON, C. J.:

P. E. Clark brought this action against the Atchison, Topeka & Santa Fe Railway Company to recover damages for personal injuries and loss sustained in an accidental collision at a railroad crossing just west of the railway station at Ashland. The trial resulted in a general verdict for plaintiff awarding him damages in the sum of $ 6,155, and with the verdict the jury returned answers to special questions submitted by the court. Upon motion the court gave judgment for defendant on the special findings of the jury. From that judgment plaintiff appeals.

In his petition plaintiff alleged that about the noon hour of September 29, 1924, while he was driving a grain binder to which was attached a team, upon a road and over a crossing of the defendant's tracks, in a cautious and prudent manner, a freight train of defendant negligently operated and running at an unusual and excessive rate of speed approached the crossing without sounding a whistle, ringing a bell or giving other signals and negligently drove the train against the binder on which plaintiff was riding, severely wounding him and injuring his property, for which damages were asked. It appears the railroad runs east and west through Ashland, and that plaintiff was engaged in driving his team and machine to his home. He drove some distance east along the railroad track and then turned south towards the crossing along the road passing the station house, which is seventy-two feet east of the railroad crossing and nineteen feet to the north rail of the main track, on which the collision occurred. When he was on the crossing the train of the defendant, composed of an engine and twenty-one cars, approached the station from the east, running at a speed of about twenty miles per hour. There were some obstructions to a view of the track towards the east of the crossing. Before going upon the crossing the plaintiff slowed down his team and looked and listened for a train, but did not stop or take any other precaution to ascertain if there was danger from approaching trains. After the team had passed over the track and the binder was upon it, the defendant's engine struck the machine on which he was riding. Material findings in respect to the situation on or about the crossing and the action of the parties follow:

"Q. How far east of the crossing was the engine of defendant's train when the engineer first discovered plaintiff or his team? A. One hundred and twenty-five feet.

"Q. How far east of the crossing was the engine of defendant's train when the fireman first discovered plaintiff's team? A. Front of engine was at east edge of crossing where plaintiff's binder was hit.

"Q. Where was defendant's engine when plaintiff first saw it? A. Two hundred feet away to the east.

"Q. Did the engineer set the emergency brakes and use all precautions he could have used immediately after he discovered plaintiff's predicament? A. No; blew four blasts before applying brakes.

"Q. How far east of the crossing could the engineer have discovered plaintiff's predicament? A. Three hundred and fifty feet.

"Q. Could the engineer, after he could have discovered plaintiff's predicament, have stopped the train and avoided the collision? A. Yes, if traveling fifteen or twenty miles an hour.

"Q. Could plaintiff after discovering the approaching train have avoided the accident? A. No.

"Q. If you find that defendant was negligent, state in what respect he was negligent. A. He should have applied brakes before blowing four blasts.

"Q. How far from main track on which plaintiff was hurt was it to the south side of depot? A. Twenty-one feet.

"Q. Did not the railroad track run practically due east in a straight line from the crossing where accident occurred for more than a mile? A. Yes.

"Q. Could not a person see east along the main line track for a distance of at least a mile from any point between the south line of station and the main line track? A. No, on account of bay window obstructing view.

"Q. Was the ground west of the road smooth and level enough so that the plaintiff should have turned on to it before going on tracks? A. Yes.

"Q. Did plaintiff do so? A. No.

"Q. What precautions did plaintiff take before going over track? A. Looked, slowed up team and listened.

"Q. Was there not a railroad crossing on a public road a short distance east of station, where an unobstructed view of track each way could be had? A. No, not unless close to main line of track.

"Q. How far back of the heads of his horses was plaintiff sitting on binder? A. Twenty-three feet.

"Q. Did plaintiff stop before driving his team on to track? A. No.

"Q. Was the place where plaintiff drove on a public, laid-out road? A. Yes, for the reason that it has been kept up and maintained by defendant and used by the public extensively for about twenty years.

"Q. Could plaintiff have seen east along the railroad until he reached a point practically west of the south line of station? A. No.

"Q. At what rate was plaintiff traveling when his horses reached track? A. One mile per hour.

"Q. At what rate was train traveling when it passed the station window? A. Approximately twenty miles per hour."

While there were several grounds of negligence alleged, the findings of the jury have eliminated all of them except that the engineer blew the whistle before he applied the brakes. The averments of negligence as to the excessive speed of the train, the failure to give necessary signals of the approach of the train to the crossing and in the existence of...