Corley v. The Atchison

• Decision Date: 07 June 1913
• Docket Number: 18,287
• Citation: 133 P. 555,90 Kan. 70
• Court: Kansas Supreme Court
• Parties: AGNES HART CORLEY, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

133 P. 555

90 Kan. 70

AGNES HART CORLEY, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

No. 18,287

Supreme Court of Kansas

June 7, 1913

Decided January, 1913.

Appeal from Greenwood district court.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Railroad Company--Obstructions to Vision at Highway Crossing. Liability of a railway company for injuries occasioned by a collision at a highway crossing may be founded upon its negligence in allowing unnecessary obstructions to vision to exist upon the right of way.

2. AUTOMOBILE--Negligence of Driver--No Imputed Negligence to Invited Guest. One who, while riding in an automobile as the guest of the driver, is injured by a collision at a railroad crossing, caused by the negligence of the company, is not precluded from recovering damages therefor by the fact that the failure of the driver to exercise due caution was a contributing cause of the injury.

3. JURY--Failure to Answer Special Questions--Error. The failure of the jury to return sufficient answers to certain special questions held to require a new trial.

William R. Smith, Owen J. Wood, and Alfred A. Scott, all of Topeka for the appellant.

Howard J. Hodgson, and Gordon A. Badger, both of Eureka, for the appellee.

OPINION

MASON, J.:

Charles F. Corley, the plaintiff's husband, was riding in an automobile as the guest of a friend, who was driving it. At a crossing it was struck by a train of the Atchison, Topeka & Santa Fe Railway Company, and all the occupants were killed. The plaintiff sued the company and recovered a judgment, from which it appeals.

The petition alleged that the accident was due to the fact that the view of the track from the highway was interfered with by unnecessary obstructions maintained or permitted by the company on the right of way. This was the matter chiefly relied upon by the plaintiff as constituting negligence on the part of the defendant. Want of due care in other respects was alleged, but in answer to a question requiring them to state of what the defendant's negligence consisted, and what employees were guilty of it, the jury answered "of obstructions consisting of embankments, hedge, weeds, and foliage neglected by road master and section foreman." This is fairly to be regarded as implying that the defendant was not negligent in any other respect. The situation is the same as though a distinct finding had been made to that effect. (Creamery Co. v. Daniels, 72 Kan. 418, 419, 83 P. 986.)

The defendant maintains that the allowance of objects on the right of way can not of itself constitute actionable negligence, although their presence may impose upon the company an obligation to take greater precautions against collisions than would otherwise be necessary. The contention is unquestionably sound as applied to objects which serve some necessary or useful purpose. But there is a conflict of judicial opinion as to whether the existence of wholly unnecessary obstructions may not in and of itself constitute an independent ground of negligence. The cases bearing on the question are collected in notes in 12 L.R.A. N.S. 1067, and 10 A. & E. Ann. Cas. 485. Bearing in mind the distinction between necessary and unnecessary obstructions we think the weight of authority is against the view here contended for by the railway company. But the question can not be regarded as an open one in this state. In A. T. & S. F. Rld. Co. v. Hawkins, 42 Kan. 355, 22 P. 322, a judgment was reversed because it was based solely upon a claim of negligence on account of a hedge growing on the right of way. But there the injury was to cattle while being driven across the track; the plaintiff pleaded that if the whistle had been sounded the injury could have been prevented; the hedge approached the track no nearer than twenty-five to thirty-five feet; and it was said that the person in charge of the stock, being on horseback, could have ridden ahead and ascertained whether a train was coming. In A. T. & S. F. Rld. Co. v. Bell, 52 Kan. 134, 34 P. 350, there was no evidence of the existence of a hedge on the right of way, and an instruction that the company might be found negligent in that regard was therefore held to be erroneous. It was said in passing that the instruction would have been erroneous even if there had been such evidence, but this was upon the authority of the Hawkins case, the doctrine of which was not extended. In C. R. I. & P. Rly. Co. v. Williams, 56 Kan. 333, 43 P. 246, the question under consideration was definitely determined in these words:

"The railroad company should not allow any unnecessary obstructions upon its right of way near a public crossing which would obstruct the view of an approaching traveller nor of those in charge of the approaching engine and train. If it unnecessarily and negligently permits brush, trees or other obstructions to grow or stand upon its right of way near a public crossing, it must be held responsible for injuries resulting to others from such negligence, providing such others are free from fault. In the conduct of the business of the company, however, it is necessary to place buildings and other structures and things upon the right of way, and therefore it can not be arbitrarily said by the trial court that it is the duty of the company to keep its right of way at the crossing in question open and free from any obstruction which would obscure the vision of a traveler and prevent him from seeing an approaching train. Whether it is necessary or negligent to place an obstruction upon the right of way is another matter to be left with the jury." (p. 337.)

In C. R. I. & P. Rly. Co. v. Hinds, 56 Kan. 758, 44 P. 993, the trial court had instructed that where a railway company permits needless obstructions near the track it must operate its trains with reference thereto. This instruction was approved on appeal, nothing more being decided in that connection because nothing more was involved. In Railroad Co. v. Willey, 57 Kan. 764, 48 P. 25, the rule of the Williams case was applied, but it was further declared that whether the allowance of particular obstructions upon the right of way--in that instance a grove and a hedge--constituted negligence was a question of fact to be submitted to the jury, and not one of law to be decided by the court. (See, also, Railway Co. v. Griffith, 69 Kan. 130, 132, 76 P. 436.)

It follows that it was proper in the present case to submit to the jury the question whether the defendant permitted the crossing to be rendered unnecessarily dangerous by allowing needless obstructions to the view, and that a finding of negligence in that regard is sufficient to support a judgment.

The defendant further maintains that a judgment in its favor on the issue of contributory negligence is required by the findings. These show that at a distance of twenty feet from the track the train could have been seen by the deceased. This would doubtless preclude a recovery if he had been managing the automobile. Reasonable prudence required the driver to approach the crossing with his car under control to look for the train as soon as he was in a position to see it, and to stop as soon as he knew of its approach. What the deceased actually did is not shown, and there is no ground for attributing to him personally any want of care. The question presented is whether he is to be deemed chargeable with the negligence of the driver. The doctrine that one who voluntarily becomes a passenger in a conveyance thereby so far identifies himself with the driver that he can not recover for an injury negligently inflicted by a third person, if the...