Dudas v. The Kansas City Southern Railway Company

• Decision Date: 08 November 1919
• Docket Number: 22,136
• Citation: 185 P. 28,105 Kan. 451
• Parties: STEPHAN DUDAS, Appellant, v. THE KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellee
• Court: Kansas Supreme Court

185 P. 28

105 Kan. 451

STEPHAN DUDAS, Appellant, v. THE KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellee

No. 22,136

Supreme Court of Kansas

November 8, 1919

Decided July, 1919.

Appeal from Crawford district court; ANDREW J. CURRAN, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

NEGLIGENCE--Conflicting Evidence--Demurrer Wrongfully Sustained. Under the rule that upon a demurrer to the evidence it is the duty of a court to accept as proved every fact supported by the plaintiff's evidence, and to indulge every favorable inference that may be deduced from it, and, where there are contradictions in his testimony, to give effect to that favorable to the plaintiff, it is held herein that the testimony tending to sustain plaintiff's recovery for injuries suffered at a railroad crossing, by reason of the negligence of the railroad company, was sufficient to require the submission of the case to the jury.

Thomas W. Clark, of Pittsburg, for the appellant.

Louis Johnson, of Pittsburg, and Hugh E. Martin, of Kansas City Mo., for the appellee.

OPINION

JOHNSTON, C. J.:

Stephan Dudas and his family, who were riding in a buggy drawn by a horse along a highway and over defendant's railroad, met an automobile on the crossing, and he alleged that when he turned to the right to let the automobile pass, defects in the crossing caused the horse to turn aside on the track and to move backward, which caused the buggy to tip over and roll down the embankment, seriously injuring the plaintiff and causing damage to the vehicle; for which he asked damages. After his testimony had been presented to the jury, the trial court sustained defendant's demurrer to his evidence and gave judgment for defendant. Plaintiff appeals.

Was there evidence sufficient to take the case to the jury? is the only material question presented on the appeal. The grounds alleged as negligence were that the defendant had failed to construct and maintain the crossing as the law requires, in that it was not sixteen feet in width; was not of the same grade as the railroad track for ten feet on each side thereof; that the approaches exceeded a seven and one-half per cent grade; and that the material was not of the kind required by the statute.

The statute in force when the injury was suffered made it the duty of the railroad company to make and keep in repair good and sufficient crossings, which should not be less than sixteen feet in width, and should be on the same grade with the crossing for ten feet on each side of the center of the track, and that the approaches thereto should not exceed a seven and one-half per cent grade, and that they should be solidly constructed of suitable material with no openings except such as are necessary for the rails; and it was further provided that the material selected by the company for this purpose should be wood, gravel, crushed rock, concrete, burned clay or slag, and of a permanent thickness equal to the height of the railroad rails. (Gen. Stat. 1915, § 8462.) The statute has since been amended in several particulars, including the widening of the crossings and the extension of the part which should be upon the same grade as the track, and reducing to some extent the grade of the approaches (Laws 1919, ch. 242), but the duty of the railroad company towards the plaintiff, so far as this case is concerned, is to be measured by the...