Ewing v. The Union Pacific Railroad Company

• Decision Date: 06 December 1924
• Docket Number: 25,373
• Citation: 231 P. 334,117 Kan. 200
• Parties: NEANDER C. EWING, for Himself and as Administrator of the Estate of HATTIE E. EWING, Deceased, Appellants, v. THE UNION PACIFIC RAILROAD COMPANY, Appellee
• Court: Kansas Supreme Court

231 P. 334

117 Kan. 200

NEANDER C. EWING, for Himself and as Administrator of the Estate of HATTIE E. EWING, Deceased, Appellants, v. THE UNION PACIFIC RAILROAD COMPANY, Appellee

No. 25,373

Supreme Court of Kansas

December 6, 1924

Decided July, 1924

Appeal from Pottawatomie district court; ROBERT C. HEIZER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Collision--Auto and Railroad Train--Evidence--Instructions of Trial Court. Instructions complained of and the evidence on which they were based examined, and it is held that there was evidence sufficient to justify the court in giving the instructions.

2. SAME--Arguments of Counsel. Where counsel for the defendant waives oral argument at the conclusion of the opening argument for the plaintiff, it is not error to refuse to permit counsel for the plaintiff to make further argument.

3. SAME--No Improper Conduct of Jury in Reaching Verdict. It is not improper conduct on the part of a jury for all jurors to agree to a conclusion reached by a majority of the jurors and return a verdict accordingly.

4. SAME--Evidence of Jurors to Show Misunderstanding of Instructions not Admissible. Evidence of jurors will not be received to show that they misunderstood the instructions and that they would not have agreed to like verdicts in two cases, arising out of the same accident and tried at the same time, if they had understood that one verdict could have been rendered in one case and a contrary verdict in the other case.

5. SAME--Answer to Special Questions Consistent with General Verdicts. The answers to special questions submitted to the jury and the general verdicts in two cases tried at the same time have been examined, and it is held that the answers are consistent with the general verdicts.

Fred Robertson, E. M. Boddington, both of Kansas City, William H. Thompson, Elbridge G. Wilson, and Wilbert F. Thompson, all of Tulsa, Okla., for the appellants.

T. M. Lillard, Bruce Hurd, and O. B. Eidson, all of Topeka, for the appellee.

OPINION

MARSHALL, J.:

Neander C. Ewing commenced one of these actions to recover from the defendant damages sustained by him in a collision with a train while he was attempting to cross the railroad track of the defendant at a public highway. Neander C. Ewing, as administrator of the estate of Hattie E. Ewing, attempted to recover damages for her death, which occurred in the same accident. A verdict was rendered for the defendant in each case, and the plaintiff in each case appeals.

The cases were tried together in the district court, and questions submitted to the jury were answered as follows:

"1. Was the plaintiff, Neander C. Ewing, guilty of contributory negligence? A. Yes.

"2. Was the wife of plaintiff, Hattie E. Ewing, guilty of contributory negligence? A. No.

"3. Was the defendant guilty of negligence? A. Yes.

"4. Did the defendant keep and maintain the railroad crossing and south approach thereto in a reasonably safe condition for persons traveling in an automobile on the highway over said crossing? A. No.

"5. If you answer the last preceding question in the negative, did the defective condition of the railroad crossing kill the engine of plaintiff's automobile shortly before the accident in question? A. No.

"6. Would plaintiff's automobile have safely crossed over the railroad crossing if the engine had not been killed on the crossing? A. Yes.

"7. Did the train whistle at the regular whistling post for the crossing where the accident occurred? A. Yes.

"8. Did the railroad company cause boards to be placed well supported by posts or otherwise and constantly maintained with boards elevated so as to be easily seen by travelers coming from the west toward the crossing in question? A. Yes.

"9. Did the defendant railroad company allow unnecessarily high weeds and brush to grow upon its right of way west of said crossing at the time of the accident, which interfered with the view of approaching trains coming from the west? A. Yes.

"10. If you answer the last preceding question in the affirmative, did plaintiff know at the time of the accident that the weeds and brush in the right of way interfered with the view of trains coming from the west? A. No.

"11. When Mr. Ewing first discovered that he was approaching the railroad crossing, did he increase the speed of the automobile? A. Yes.

"12. What was the highest rate of speed at which the automobile traveled as it approached the railroad crossing after Mr. Ewing discovered that this crossing was ahead of him? A. Twelve miles an hour.

"13. If the automobile had approached the railroad crossing at a rate of speed not in excess of eight miles per hour, could its occupants have seen the train as it approached from the west in time to avoid the collision? A. Yes.

"14. From a point in the highway fifty feet south of the track was the view of a train approaching from the west open for a distance of eight hundred feet west of railroad crossing, under the weather conditions on the date of the accident? A. Yes.

"15. From a point in the highway fifty feet south of the track, for what distance west of the railroad crossing could a train approaching from the west have been seen under the weather conditions on the date of the accident by a person traveling in an automobile? A. Eight hundred feet.

"16. As a traveler on the highway proceeded nearer to the railroad crossing after passing a point fifty feet south of it, would the distance that a train approaching from the west could be seen steadily increase? A. Yes.

"17. From a point in the highway twenty-five feet south of the track, for what distance west of the railroad crossing could a train approaching from the west have been seen under the weather conditions on the date of the accident by a person traveling in an automobile? A. About 1,300 feet.

"18. How far west of the crossing was the locomotive engine at the time the plaintiff's automobile went upon the track? A. About 113 feet.

"19. Did the railroad engineer omit to do anything that he could have done to prevent the accident after the automobile got upon the track? A. No.

"20. If you answer the last preceding question in the affirmative, then state fully what the engineer omitted to do?

"21. State fully what, if any, negligence the defendant was guilty of? A. Failing to keep the weeds and brush cut on south side of right of way immediately west of crossing and failure to keep crossing and grade on south side of crossing in proper condition.

"22. As their automobile approached the crossing did Mr. and Mrs. Ewing have an understanding that they would both keep a lookout for approaching trains? A. Yes."

The answers to the questions submitted to the jury are fully set out in the abstract, but a transcript of only a part of the evidence has been made and only the part transcribed has been abstracted.

1. The plaintiffs complain of instructions numbered 7, 8, 9, and 19 1/2 given by the court, and argue that those instructions were not based on evidence. Those instructions were as follows:

"7. You are instructed, gentlemen, that where two or more parties are in pursuit of a mutual purpose and possessed of equal privileges of direction and control of a vehicle in which they are traveling in pursuit of such common object, they are in the law held as agents of each other and the negligent act of one in the furtherance of the common purpose is imputable to the other.

"8. If Mrs. Ewing by agreement or understanding with her husband undertook to keep a lookout for trains as they approached the crossing where the accident occurred, then she had the same duty to ascertain that there was no train approaching before she went upon the track as the driver of the car had; and if she failed to exercise due care in this respect and such failure contributed to cause the accident, as hereinafter explained, then your verdict must be for the defendant in the suit to recover damages for her death.

"9. If you find from the evidence in the case that the plaintiff and his wife were, at the time of the injuries complained of, in pursuit of a mutual purpose and possessed of equal privileges of direction and control of the automobile in which they were traveling in pursuit of such common object, and either did something or refrained from doing something that amounted to a want of ordinary care, which act or acts cooperated with act or acts of the defendant to produce the injuries complained of, and that such act or omission to act on the part of plaintiff or his wife was the proximate cause of the injuries complained of, then the plaintiffs were guilty of contributory negligence, and cannot recover.

"19 1/2. The laws of this state provide that upon approaching a railroad crossing outside of any village or city a person operating an automobile shall reduce the speed of his machine to a rate not exceeding eight miles an hour, and shall not exceed such speed until entirely past such crossing. If you find from the evidence in this case that Mr. Ewing, in approaching the crossing where the accident occurred, violated this requirement of the law and that his violation of it contributed to cause the injury, then I instruct you that he cannot recover in this case for his own personal injury or for the damage done to his automobile in the collision; and if Mrs. Ewing was in joint control of said automobile, as elsewhere explained, no recovery can be had for the loss of her life."

The abstract of the plaintiffs does not purport to be an abstract of all the evidence and does not say that there was no evidence on the propositions concerning which the court instructed the jury in instructions 7, 8, and 9. The abstract does say it "is a true and correct abstract of all proceedings...