Ek v. The Chicago
| Decision Date | 10 January 1931 |
| Docket Number | 29,665 |
| Citation | 132 Kan. 177,294 P. 663 |
| Court | Kansas Supreme Court |
| Parties | OSCAR EK and PHOEBE EK, Appellants, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellee |
Decided January, 1931.
Appeal from Morris district court; CASSIUS M. CLARK, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. RAILROADS -- Accidents at Crossing -- Contributory Negligence. The fact that a person was only fourteen years of age at the time he was killed at a railroad crossing does not of itself make the question of whether or not he was guilty of contributory negligence one for the jury. The age of deceased is only a circumstance to be considered by the court along with other surrounding facts and circumstances.
2. SAME--Contributory Negligence. Under the facts stated in the opinion it is held that the deceased was guilty of contributory negligence as a matter of law.
Henry Torgeson, of Council Grove, James V. Humphrey and Arthur S Humphrey, both of Junction City, for the appellants.
Luther Burns, Y. E. DuMars, both of Topeka, and W. J. Pirtle, of Council Grove, for the appellee.
This action was brought by the parents of Chester Ek to recover damages for the alleged negligent killing of Chester by a train of the defendant company at a railroad crossing near White City. A demurrer to the evidence of plaintiff was sustained, and from that ruling plaintiffs appeal.
Chester Ek was a boy just past fourteen years of age. The place where he met his death was the intersection of the tracks of the defendant with McKenzie street in White City. The principal ground of negligence depended upon by plaintiffs was that the depot of defendant, together with other buildings located on the right of way of defendant, and freight cars that were standing on the tracks, obstructed the vision of travelers on the street and rendered this an extra hazardous crossing, which required more than ordinary precaution on the part of defendant.
At the point where the tragedy occurred on the day in question Chester was driving west along McKenzie street, which is paved, and is the main street of White City. At a point just east of where McKenzie street and the tracks of defendant intersect each other, McKenzie street runs into and becomes a part of state highway No. 10. When it crosses the railroad tracks it connects with a country road, which is the main road to Junction City and Salina. McKenzie street is the main entrance to the city from the west, southwest and northwest. White City is a town of approximately 636 population. There are four tracks maintained by the defendant at the point where this line crosses McKenzie street. The furthest one east is what is known as a house track, and upon it on the day in question some freight cars were standing. This house track is located on the east side of the depot and other buildings of the defendant. Running parallel with the house track and on the west side of the depot is, first, the main line of the defendant, upon which run the northeast-bound trains. This track is located 50 feet west of the house track, but due to the fact that these tracks run northeast and southwest--hence do not cross McKenzie street at a right angle--the driving distance between the house track and the northeast-bound track is 74 feet. Immediately west of the northeast-bound track of defendant and but a short distance away is the main line of the defendant, upon which run the southwest-bound trains, and immediately west of that track is what is known as the passing track. All these tracks pass along the western edge of White City.
The evidence disclosed that after a driver along the west-bound trafficway of McKenzie street was a few feet west of the house track there would be nothing to obstruct his view of a train coming from the southwest except the depot and buildings located between the house track and the northeast-bound track and south of McKenzie street, and that he would have approximately 70 feet in which to drive before his car reached a place where it could be hit by a northeast bound train. These other buildings were all south and either even with or west of the depot, and consisted of a coal house, toilet house, tower house, low shed, coal bin, pump house and stockyards.
The north end of the depot is located 97 feet south of a line drawn at right angles to the point of intersection of the center of the street and the northeast-bound main track. From the north end of the depot to a point in the center of the west-bound trafficway, along which Chester Ek was driving, is 117 feet, and the distance between the west edge of the bay window of the depot and the east rail on the first track west of the depot is 11 feet and 6 inches, and when one stands in McKenzie street 11 feet and 6 inches from the east rail he can see along the railroad track for several miles. There was also evidence that when standing in the center of McKenzie street 23 feet east of the east rail, by looking south past the depot one could see a train approximately 300 feet away. There was also evidence that when 15 feet distant from the track, measured along the driveway, one could see a train a mile away. The situation seems to be that when 23 feet from the track one traveling west on McKenzie street, as Chester was, could see past the station a distance of 300 feet. When 12 feet from the rail at right angles, or 15 feet along the driveway, one can see a train a mile away. Therefore, from a point 23 feet distant up to a point 15 feet distant, measured along the trafficway, one's...
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