Cooper v. The Chicago

• Decision Date: 07 February 1925
• Docket Number: 25,717
• Citation: 117 Kan. 703,232 P. 1024
• Court: Kansas Supreme Court
• Parties: VESTA BESSIE COOPER, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

232 P. 1024

117 Kan. 703

VESTA BESSIE COOPER, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

No. 25,717

Supreme Court of Kansas

February 7, 1925

Decided January, 1925

Appeal from Smith district court; WILLIAM R. MITCHELL, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Accident at Railroad Crossing--Failure to Maintain Statutory Crossing Over Public Highway--Company Not Liable Unless Its Failure Was The Proximate Cause of the Injury. Before a violation of statutory specifications touching the maintenance of a railway crossing over a public highway can form a basis for the railway company's liability in damages for the death of a person killed at such crossing, it must be made to appear that the defective character of the crossing was the proximate cause of the accident.

2. SAME--Duty of Person in Automobile About to Cross a Railroad Track--"Stop Look and Listen." Rule followed that where one is about to cross a railway track and obstructions to his sight and hearing prevent him from assuring himself that no train is approaching, it is negligence for him to risk his life by attempting to cross without otherwise ascertaining that it is safe to do so.

3. SAME--Duty to Observe Railroad Crossing Signboard and Visible Evidence of Proximity to Railroad Crossing. Where a railway crossing signboard or other evidence of the proximity of a railway crossing is plainly visible to a person in an automobile on the highway, such person is chargeable with notice thereof, and must govern his conduct accordingly in the interest of his own safety.

4. SAME--Contributory Negligence of Deceased Established. The facts not in dispute, and a controlling finding of the jury considered and held to establish contributory negligence on the part of a husband killed at a railway crossing over a public highway, and to bar a recovery against the railway company in favor of the surviving spouse.

Luther Burns, J. E. DuMars, both of Topeka, and L. C. Uhl, Jr., of Smith Center, for the appellant.

A. W Relihan, T. D. Relihan, and J. T. Reed, all of Smith Center, for the appellee.

OPINION

DAWSON, J.:

This was an action for damages for the alleged negligent killing of plaintiff's husband.

The tragedy happened on December 8, 1921, about 11:30 o'clock in the forenoon, at a railway crossing about a mile east of Smith Center, where the railway runs east and west and the public highway runs north and south. Five persons were riding southward in a Dodge touring car; J. C. Reiser was driving; Mrs. J. C. Reiser rode by his side in the front seat; W. A. Yenne, plaintiff's husband, sat on the left side of the rear seat, and with him sat Jeff Yenne and Mrs. Jeff Yenne. They had left their homes, some fourteen miles northeast of the crossing, about 10:30 a. m., and were going to a public sale two or three miles southeast of Smith Center. As their car was going southward over the crossing it was struck by defendant's westbound passenger train, and Reiser, W. A. Yenne, Jeff Yenne and Mrs. Yenne were killed. Mrs. Reiser survived and was a witness at the trial.

The plaintiff charged the railway company with negligence in failing to construct and maintain the crossing as required by law; that the crossing was only 16 feet wide; that the grade approaching the crossing was steeper than permitted by the statute, and that the grade continued up to the rails with no level ground immediately north of the railway track.

Defendant's answer contained a general denial, and alleged that plaintiff's husband's death was caused by his own negligence and that of Reiser, the driver of the automobile, and that he and Reiser were engaged in a common enterprise.

The pleadings of both plaintiff and defendant contained other allegations of fact, which so far as necessary will be considered in connection with the evidence pertaining thereto.

Jury trial; verdict for plaintiff for $ 2,500; special findings, in part, as follows:

"Q. No. 3. Was the crossing sign bearing the words 'Railroad Crossing' in the shape of an 'X' on a post in place and visible to travelers on the highway traveling from the north? A. Yes.

"Q. No. 4. Were the railroad track and wing fences of the cattle guards plainly visible to one approaching the crossing in an automobile from the north? A. No.

"Q. No. 5. At what rate of speed was the automobile in question traveling while approaching the railroad crossing?

Miles per hour.

(a) When 50 feet from the crossing?

12

(b) When 25 feet from the crossing?

8

(c) When upon the crossing?

8

"Q. No. 6. At what distance from the crossing could the train have been seen by W. A. Yenne when on the highway?

(a) 113 feet from the crossing? We do not know.

(b) 75 feet from the crossing? We do not know.

(c) 50 feet from the crossing? We do not know.

(d) 40 feet from the crossing? We do not know.

(e) 25 feet from the crossing? We do not know.

"Q. No. 7. If you find that the defendant was negligent in one or more of the acts alleged in the petition, then did such act or acts of negligence proximately contribute to or cause the injury? A. Yes.

"Q. No. 8. If in answer to the next foregoing question you find the defendant was negligent, then state specifically in what such act or acts consisted? A. That defendant's railway was very rough, steep, narrow, unlawful, and an approaching train from east is not visible when automobiles are ascending grade from the north until within a few feet of the rails.

"Q. No. 9. Did W. A. Yenne at the time and at all times prior to the accident use such care for his own safety as an ordinarily prudent person would have used under the same or similar circumstances? A. Yes."

The jury were directed to return a fuller answer to question No. 8, and complied as follows:

"Ans. to Q. 8. That the approach to the defendant railway was very rough, steep, narrow, unlawful and an approaching train from the east is not visible when automobiles are ascending grade from the north until within a few feet of the rails."

Defendant moved that the jury be required to answer question No. 6, moved for a new trial, and moved to set aside the answers to questions 4 to 9, inclusive. These motions were denied, and judgment was entered for plaintiff.

Several errors are assigned, around which defendant centers two main contentions--that the evidence failed to show that the railway company was guilty of any negligence which brought about the death of W. A. Yenne, and that the evidence did show that there was contributory negligence on the part of the deceased.

As all other allegations of negligence charged against the defendant were eliminated by the special findings of the jury ( Roberts v. Railway Co., 98 Kan. 705, 161 P. 590), let us first notice that the negligence of the railway company as found by the jury lay in the defective character of the crossing. The findings read:

[First] "Ans. to Q. 8. That defendant's railway was very rough, steep, narrow, unlawful, and an approaching train from east is not visible when automobiles are ascending grade from the north until within a few feet of the rails.

[Second] "Ans. to Q. 8. That the approach to the defendant railway was very rough, steep, narrow, unlawful and an approaching train from the east is not visible when automobiles are ascending grade from the north until within a few feet of the rails."

The statutory requirement as to railway crossings over rural township highways is that unless the board of county commissioners finds it unnecessary, the railway company must maintain in good repair a crossing twenty feet in width, of the same grade as the railway track for thirty feet on each side of the rails, and the approaches thereto shall not exceed six per cent grade, and special requirements are made for the filling of the space between the rails. (R. S. 66-227.)

The plaintiff's evidence tended to show that these statutory requirements had not been met, nor had the county commissioners found them to be unnecessary at this particular crossing. So, of course, the negligence of the defendant in failing to comply with the statute was established. But to fasten liability upon the railway company it was not enough to show that the railway company had failed to comply with the statute touching the character of crossing maintained by it on this highway. It was necessary to show that defendant's failure and neglect to construct and maintain this crossing in accordance with the statutory standard was the proximate cause of the accident which brought about the death of W. A. Yenne. (Williams v. Electric Railroad Co., 102 Kan. 268, and citations, 170 P. 397; Carson v. Railway Co., 103 Kan. 138, 172 P. 1000; Note to Shatto v. Erie R. Co., 59 C. C. A. 5, 10, 19.)

Now it is very difficult to see how the defects of the crossing had anything to do with causing the accident. The defects were comparatively slight. The jury found the approach was very rough, but there was no evidence to that effect. The jury found the approach was steep. It was steeper than the statutory standard of 6 per cent grade; it was about 8 per cent. The jury found that the approach was narrow; it was about sixteen feet wide. But there was no evidence that these shortcomings of the approach to the crossing presented any difficulties to the automobile and its occupants in negotiating the crossing. The jury found that the automobile approached the crossing at twelve miles an hour and was crossing the track at eight miles per hour when struck by the train. Mrs. Reiser, the sole survivor of the accident, in testifying in plaintiff's behalf, said:

"Q. Well, you went straight south on that road, did you? A. Yes sir.

"Q. And you finally came to a railroad track,...