Creten v. Chicago, R. I. & P. R. Co.

• Decision Date: 11 April 1959
• Docket Number: No. 41049,41049
• Citation: 337 P.2d 1003,184 Kan. 387
• Parties: Arthur CRETEN, Appellee, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, a Corporation, Appellant.
• Court: Kansas Supreme Court

Page 1003

337 P.2d 1003

184 Kan. 387

Arthur CRETEN, Appellee, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, a Corporation, Appellant.

No. 41049.

Supreme Court of Kansas.

April 11, 1959.

Syllabus by the Court

1. In testing the sufficiency of evidence as against a demurrer, the evidence and the inferences that may be properly drawn therefrom must be considered in the light most favorable to the party against whom the demurrer is directed, and if the evidence and the inferences viewed in that manner are of such character that reasonable minds, in the exercise of fair and impartial judgment, may reach different conclusions thereon, the demurrer should be overruled and the issue submitted to the jury.

2. Contributory negligence is never presumed; it must be established by proof, and when the plaintiff's evidence does not disclose his own contributory negligence as a matter of law, the jury has a right to disbelieve and disregard all evidence tending to establish its existence.

3. G.S.1949, 8-5,118 construed and held to be inapplicable to the operation of vehicles on a private crossing over railroad tracks, and under the facts and circumstances, plaintiff was not guilty of contributory negligence as a matter of law in failing to have a safety hitch attached to his irrigation pump and tractor as more fully set forth in the opinion.

4. Where a railroad company voluntarily constructs and maintains a crossing and keeps it in repair at a place other than a public street or highway, knowing it will be used and has been used by others, it in effect gives its consent to, if it does not invite, the use of the crossing and has the duty to operate its trains over such crossing with reasonable regard to the safety of persons and their property who might be rightfully using it. Under such circumstances, the railroad is not warranted in treating the users of the crossing as trespassers and must maintain such a lookout as is requisite with the exercise of due care.

5. Ordinarily a general verdict imports a finding in favor of the prevailing party upon all the issues in the case to the extent that the general verdict is not inconsistent with special findings.

6. Where findings of the jury are susceptible of two interpretations, the court will, if possible, adopt the one which will harmonize the findings with and sustain the general verdict. If one interpretation leads to inconsistency and the other to harmony with the general verdict, the latter will be adopted.

7. One entitled to damages because his property is injured by another is bound to exercise reasonable care and diligence under the circumstances to avoid loss or to minimize the resulting damages and to the extent that his damages are the result of his failure to exercise such care and diligence, he may not recover.

8. The record in an action to recover the fair market value of plaintiff's irrigation pump which was struck and demolished by defendant's train on a private crossing, and for crops growing in a field rented by the plaintiff, which were to be irrigated by the demolished pump and which withered and died, examined and held: (1) The trial court did not err (A) in overruling defendant's demurrer to plaintiff's evidence; (B) in overruling defendant's motion for a directed verdict, and (C) in refusing to set aside answers to special questions 6, 8, 9 and 10. (2) The trial court erred (A) in failing to set aside answers to special questions 13(b), (c), (d), (e) and (f), and (B) in failing to sustain defendant's motion to conform the verdict to special finding 13(a).

Clayton M. Davis, Topeka, argued the cause, and Thomas M. Van Cleave, Willard L. Phillips, Patrick B. McAnany and Thomas M. Van Cleave, Jr., Kansas City, and Mark L. Bennett, Topeka, were with him on the briefs, for appellant.

Leonard O. Thomas, Kansas City, argued the cause, and J. E. Schroeder, Lee E. Weeks, J. D. Lysaught, Richard Millsap, Robert H. Bingham and Ervin G. Johnston, Kansas City, were with him on the briefs, for appellee.

FATZER, Justice.

This was an action for damages arising out of the collision between a Rock Island passenger train and an irrigation pumpmounted on a two-wheel trailer owned by the plaintiff, Arthur Creten. George Scott, Marvin LaRue, the Union Pacific Railroad Company and the Chicago, Rock Island and Pacific Railroad Company were named defendants. Service of summons was not made on Scott and neither he nor LaRue were operating the train at the time of the collision. LaRue's demurrer to plaintiff's evidence was sustained and the propriety of that ruling is not before us. The jury returned a verdict for plaintiff and against the Chicago, Rock Island and Pacific Railroad Company (defendant), and did not find the Union Pacific guilty of negligence. Following the overruling of post-trial motions, the defendant has appealed.

Summarized in part, the allegations of the amended petition were that on July 4, 1954, the defendant and Union Pacific jointly owned, maintained and operated tracks and crossings in Wyandotte County, Kansas, and operated trains thereon; that one such crossing was located on the south side of Kansas Highway 32, which runs parallel to the railroad right of way about a mile east of Muncie, which was built and established by defendant and Union Pacific some 30 years ago as a private crossing, but since then has been used by the public generally and by the plaintiff to gain access to a field which he rented on the south side of the tracks; that on the day in question the defendants were maintaining the crossing, but it was in a state of disrepair and had been for many months in that there were large holes and depressions between the planks and rails, and that defendants knew or in the exercise of reasonable care should have known it was in such a state.

It was further alleged that on the morning in question Billy Crispin, an employee of the plaintiff, left plaintiff's farmyard driving a tractor pulling a Hercules pump mounted on a two-wheel rubber tired trailer, intending to pull the pump to the Kansas River for the purpose of pumping water from the river to irrigate a field of growing crops owned by plaintiff and grown in the field south of the tracks; that, as Crispin approached the crossing, there was no train in sight and he proceeded to cross the crossing but in so doing and after the tractor cleared the north or westbound main line track, the rough and uneven planking caused the tongue of the trailer to come loose from the tractor and the trailer with the pump attached thereto became stalled on the crossing; that after the trailer became loose, Crispin noticed a Rock Island train approaching from the east, which was then more than a mile east of the crossing; that the day was clear, there was no curve in the track and the stalled trailer standing on the track was clearly visible to the engineer and fireman operating the train and was seen by them, or should, in the exercise of the lookout required to be maintained by them, have been seen when the train was more than a mile east of the crossing; that Crispin dismounted from the tractor which he had parked south of the tracks and attempted to pull the trailer from the crossing by hand, but was unsuccessful; that these efforts were clearly visible to the engineer and fireman; that, notwithstanding these facts, the train approached the crossing at a speed of 80 miles per hour and did not at any time slacken speed; that the engineer and fireman could and should, in the exercise of ordinary and reasonable care, have stopped the train after they saw, or in the exercise of ordinary and reasonable care, should have seen the trailer stalled on the crossing and could and should, in the exercise of reasonable care, have avoided the collision; that they were keeping no lookout along the track in front of the train as they approached the crossing and that it was their duty to keep such a lookout and to have stopped after they saw or should, in the exercise of ordinary and reasonable care, have seen the trailer stalled on the crossing and that as a result of their negligence, the train struck the pump and trailer and demolished them.

Plaintiff further alleged that a drouth occurred in the summer of 1954 and on July 4, the crops planted by him in the field to be irrigated were in need of immediate water; that plaintiff had no other pump which which he could irrigate the crops and was unable to obtain another, and as a result, the crops withered and died.

Defendant and Union Pacific answered denying the allegations of the plaintiff's petition and alleged that any injury or damage sustained by plaintiff was solely and proximately caused by his carelessness and negligence or that of his employee, Crispin, and further, that plaintiff failed to take appropriate measures to prevent or mitigate any damage which he may have suffered to his growing crops.

Plaintiff's reply denied all allegations in the answers inconsistent with those alleged in his petition.

With the issues thus joined, trial was by a jury which returned its verdict in favor of plaintiff for $10,000, and made answers to special questions, as follows:

'Question No. 1: On July 4, 1954, was the crossing where the collision occurred a private way across the railroad tracks for the convenience and use of the owners and tenants of the land immediately south of the railroad tracks? Answer: Yes.

'Question No. 2: At what rate of speed in miles per hour was the train traveling immediately prior to the time the brakes on the train were applied? Answer: 60-65 m. p. h.

'Question No. 3: Traveling at the rate of speed given in the answer to Question No. 2, in what distance could the train be stopped by a maximum service application to the train brakes? Answer: 1970 feet.

'Question No. 4: How far east from the point of collision was the front end of the train when the brakes were applied? Answer: 700 feet.

'Question No. 5: How far from the...