Denton v. The Missouri

• Decision Date: 11 March 1916
• Docket Number: 19,986
• Citation: 155 P. 812,97 Kan. 498
• Court: Kansas Supreme Court
• Parties: MOLLIE J. DENTON, Appellee, v. THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant

155 P. 812

97 Kan. 498

MOLLIE J. DENTON, Appellee, v. THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant

No. 19,986

Supreme Court of Kansas

March 11, 1916

Decided, January, 1916.

Appeal from Labette district court; ELMER C. CLARK, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

AUTOMOBILE--Driven by Husband--Collision--Injuries to Wife--Negligence. The evidence and special findings of fact examined and held that a woman who was riding in an automobile driven by her husband and who was injured by a collision between the automobile and a switch engine on a street crossing was not guilty of negligence as a matter of law.

W. W. Brown, James W. Reid, E. L. Burton, and J. W. Iden, all of Parsons, for the appellant.

C. E. Pile, W. D. Atkinson, and L. E. Goodrich, all of Parsons, for the appellee.

OPINION

BURCH, J.:

The action was one for damages for injuries which a woman, riding in an automobile driven by her husband, sustained by being struck by a switch engine on a street crossing in the defendant's yards in the city of Parsons. The plaintiff recovered and the defendant appeals.

The plaintiff, her husband, F. M. Denton, her son, E. E. Denton, and her son's wife occupied the automobile. F. M. Denton, sitting on the right-hand side, was driving the car. E. E. Denton occupied the front seat with the driver. The plaintiff and her daughter-in-law occupied the rear seat. Crawford avenue in the city of Parsons extends east and west across the defendant's tracks, twenty-four in number, and the automobile was proceeding toward the west. In the midst of the tracks and north of the crossing stood a car barn. On the first track west of the car barn stood a stock car, the south end of which was in the street. On the next track toward the west stood a coal car, the south end of which was a few feet north of the south end of the stock car. A switch engine moving toward the south on the third track west of the car barn struck the automobile. The engine bell was ringing at the time and a track foreman of the defendant testified it could be heard at a distance of four hundred or five hundred yards. The plaintiff and her husband had not been on the crossing before. The plaintiff's son was an employee of the defendant, was familiar with the crossing, and said to his father that he would look out for trains. He testified there was danger in stopping an automobile there because cars were likely to be moved at any time. The automobile proceeded as slowly as possible without killing the engine, at a speed of about four or five miles per hour. The plaintiff testified that as they entered the crossing she could see tracks covering approximately a block to the west. The tracks seemed to be pretty thick clear across. The east tracks were farther apart than those at the west. The plaintiff had frequently ridden in the automobile with her husband and had confidence in his ability as a driver. She looked for a flagman and saw none. She saw no engine and she heard no bell. The defendant was negligent in not complying with a city ordinance requiring a flagman to be stationed at the crossing. With a general verdict for the plaintiff the jury returned the following special findings:

"1. Did the plaintiff, just before the collision in question, see cars upon the sidetracks and observe the condition of the crossing with reference to obstructions that would obscure her view of an approaching engine from the north? Ans. Yes.

"2. Did the plaintiff on approaching the crossing at which the collision occurred, see a railroad track beyond the obstructions and know that engines or cars were likely to be passing over said tracks at any time? Ans. Yes.

"3. Did said plaintiff endeavor to have said automobile stopped at any time when passing over the tracks of defendant before it went upon the crossing where the collision occurred? Ans. No.

"4. Did the noise of the automobile prevent plaintiff from hearing the ringing of the bell of the engine, as said engine approached the crossing on which the collision occurred? Ans. No.

"5. What, if anything, did the plaintiff do to avoid the collision? Ans. Looked and listened.

"6. When it first became possible for plaintiff to observe an engine approaching on the tracks where the collision occurred, was the automobile just entering upon said tracks? Ans. Yes.

"7. Was said engine stopped as soon as it could be stopped after the employes of defendant discovered the automobile approaching? Ans. Yes.

"9. If you find for the plaintiff, state what elements of damage you include in your verdict. Ans. Bodily pain and permanent injury.

"10. Was the automobile on approaching the crossing, under the control of the operator so that it could have been stopped at any point before entering upon the crossing? Ans. Yes.

"11. Do you find that the view of the defendant's employes who were riding upon said engine was obstructed by the cars so that they could not see the approaching automobile until it came from behind the cars about six or seven feet from the crossing? Ans. Yes.

"12. Do you find that the employes of the defendant made every effort, after discovering the automobile, to stop said engine and to prevent the collision? Ans. Yes."

The defendant's principal contentions are that the plaintiff was guilty of negligence as a matter of law and that judgment should have been rendered for the defendant on the findings of fact.

This is a second appeal. (Denton v. Railway Co., 90 Kan. 51, 133 P. 558.) A paragraph of the syllabus of the first opinion reads as follows:

"Where a woman is injured through the negligence...