Coleman v. The St. Louis-San Francisco Railway Company

• Decision Date: 05 April 1930
• Docket Number: 28,965
• Parties: W. L. COLEMAN et al., Appellees, v. THE ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant
• Court: Kansas Supreme Court

286 P. 254

130 Kan. 325

W. L. COLEMAN et al., Appellees, v. THE ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant

No. 28,965

Supreme Court of Kansas

April 5, 1930

Decided January, 1930.

Appeal from Wyandotte district court, division No. 2; FRANK D HUTCHINGS, judge.

Judgment reversed and remanded.

SYLLABUS

SYLLABUS BY THE COURT.

RAILROADS--Accident at Crossing--Negligence. Upon the record in this case, which is summarized in the opinion, it is held that the defendant was not guilty of any actionable negligence and that plaintiffs are not entitled to recover.

E. T. Miller, of St. Louis, Mo., Henry S. Conrad, L. E. Durham and Hale Houts, all of Kansas City, Mo., for the appellant.

David F. Carson, of Kansas City, and Ralph Page, of Ottawa, for the appellees.

OPINION

JOCHEMS, J.:

The appellees, W. L. Coleman and Elizabeth Coleman, sued the St. Louis-San Francisco Railway Company in the district court of Wyandotte county for damages for the death of their unmarried son, James Clarkson Coleman. He was killed on September 21, 1924, in a collision upon a highway grade crossing near Paola, Kan. An automobile in which he was riding at the time collided with a passenger train of the defendant. Plaintiffs asked for damages in the amount of $ 3,000 and obtained a verdict from the jury for the full amount. Judgment was so entered on the verdict, and defendant appeals.

We will consider the first question raised by appellant in its brief, in which appellant contends that demurrer to plaintiffs' evidence should have been sustained, and that under the evidence and the special findings of the jury the defendant was chargeable with no negligence proximately causing the death of the deceased, and that as a matter of law the sole proximate cause of his death was the negligence of the driver of the car, or the negligence of the driver and of the deceased; that even had there been negligence on the part of the defendant recovery would be barred by the negligence of the deceased.

The railroad crossing in question was about fifteen rods outside the corporate limits of Paola. The defendant's tracks ran from the southeast to the northwest, the direction being generally designated in the briefs as north and south. The highway in question was the main traveled road between Osawatomie and Paola, a distance of some ten miles. The highway ran from the south to a point some 500 feet west of the crossing, where it turned directly east, continuing in an easterly direction, crossing the tracks at the point where the collision occurred and running thence to a point 100 feet or more beyond, where it intersected Silver street extended from the city of Paola. The car in which the deceased and his companions were riding was eastbound, having come from the south and made the turn to the east. Lying south of the highway from the point where the turn was made to go east, to the west edge of the right of way, was the property of T. W. Hayes. About halfway between the corner where the road turns to the east and the right of way was the Hayes house. East of the house, but west of the right of way, were the shed and barn. Defendant's west right-of-way line was 50 feet from the center of the tracks. About 110 feet west of the center of the track a driveway entered the Hayes property from the road. Between the driveway and the edge of the right of way, along the south side of the road as it approached the tracks, there was a hedge fence, and along the west side of the right of way for some distance south and running along the east line of the Hayes property on the line between that property and the right of way, there was also a hedge fence which encroached about one foot on the right of way. On the Hayes property between the buildings and the hedge there were some trees.

The deceased and his companions had come from Garnett, some thirty miles beyond Osawatomie and about forty miles from Paola. Two other automobiles were traveling in the same direction. The occupants had been to a ball game at Parker. A Mr. Scheinert owned and drove the first car and a Mr. Ingle the second car. The Scheinert car crossed the track and stopped about 60 to 75 feet east thereof just before the deceased and his companions drove on the track. Scheinert stopped to wait for the car being driven by Ingle because his small son was in the Ingle car and he wanted to see if they got across safely. Scheinert and the occupants of his car saw the train as they came up to the track and one of the occupants wanted him to wait until the train had passed, but he drove on across. Defendant's track was built up on a grade some 10 or 12 feet above the level of the ground and the highway was inclined upward as it approached the track from either side. About 500 feet south of the crossing where the collision occurred was another road, crossing the track from the west, which turned in a northerly direction and ran along the east side of the track and connected with the road upon which the collision occurred, and with Silver street just east of the crossing which was the scene of the collision.

The car in which the deceased was riding was a Dodge, driven by a young man named Grenen. The driver, the deceased and another young man were the occupants, and all were riding in the front seat. This Dodge car had passed the Ingle car about two miles from Paola and was traveling very fast at the time, according to the occupants of the Ingle car. The occupants of the Scheinert car saw the collision after they had crossed the track and had stopped to wait for the Ingle car. The first glimpse they had of the Dodge car driven by Grenen was as it came up to the track from the other side. Grenen, the driver, lived about three hours after the collision. The deceased and the other young man were killed instantly. The pilot of the engine struck the middle of the car and the occupants landed on the east side of the track. The speed of the train was variously estimated by witnesses at from 35 to 55 miles per hour. There was no evidence as to the speed of the automobile driven by Grenen offered on behalf of the plaintiffs, except that some of the witnesses in the Scheinert car stated that it seemed to "come right up out of the ground" on the west side of the track. One witness for the defendant, Mrs. Hayes, estimated the speed of the Dodge car, as it passed her house and went upon the track, at from 40 to 45 miles per hour. The road was a dirt road and rough. One witness for plaintiffs testified that it was so rough as it approached the track that "if you drove 15 or 20 miles per hour you were liable to be bounced out of the car."

There was a pronounced incline beginning about 20 or 30 feet west of the railroad track, according to some witnesses. Others claimed that the incline was gradual. Some claimed it was gradual up to a point 20 or 30 feet west of the track and then came right up by a sharp incline to the railroad track. Scheinert testified he heard the train whistle when he got on the track. He stated that from the time he saw the train until it struck the Dodge car it seemed a very short while. The evidence on the part of all witnesses who were in a position to hear was to the effect that the train whistled for the crossing. There was testimony that shortly after the collision the cattle guard, which was broken as a result of the collision, and the railroad crossing sign, were repaired and repainted.

There was testimony showing there was a hedge fence along the west right-of-way line, and also from the driveway into the Hayes farm up to the right of way. Other testimony was that there were some trees on the Hayes property which obstructed the view; that the foliage was still green and pretty thick. There was conflicting testimony as to the height of the hedges. Some witnesses stated that they were 10 to 12 feet high at the time of the accident; others who testified for the defendant stated that they had been cut down several weeks before the collision and were then in the condition as shown by certain photographs which defendant took the morning after the collision. The testimony was clear and undisputed that the hedge fence to the west of the track was on the line between the right of way and the Hayes property; that this line was 50 feet from the track, but that the hedge encroached about one foot over on the right of way, thus leaving a space of 49 feet between the track and the hedge clear of any and all obstructions. There was some testimony that the train could not be seen by the deceased on account of the obstructions above described, and shadows. The collision occurred in the early evening. Some witnesses testified that it was about 6:45 p. m. The engineer stated that it was exactly 6:15 p. m. The headlight on the train had not been turned on; neither were any of the automobiles using their headlights.

The jury made special findings as follows:

"1. Did the car in which deceased was in stop on the highway west of the crossing, and if so, how far from the track? A. We presume the car did stop about 50 feet.

"2. How fast was the car, which deceased was in, going when it went upon the crossing? A. From 10 to 15 miles per hour.

"3. How fast was the car, which deceased was in, going when it passed the Hayes house? A. About 20 miles per hour.

"4. How fast was the car, which deceased was in, going when it turned east on the highway at the turn west of the Hayes house? A. About 20 miles per hour.

"5. How far south of the crossing could a train be seen from the highway at the following points?

(a) From 100 feet west of the track? A. Couldn't see it.

(b) From 75 feet west of the track? A. Couldn't see it.

(c) From 50 feet west of the track? A. Couldn't see it.

(d) From 40 feet west of the...