Fike v. The Atchison

• Decision Date: 05 July 1913
• Docket Number: 18,356
• Court: Kansas Supreme Court
• Parties: ADDIE FIKE, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

133 P. 871

90 Kan. 409

ADDIE FIKE, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

No. 18,356

Supreme Court of Kansas

July 5, 1913

Decided July, 1913.

Appeal from Harvey district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. DEATH--At Street Crossing--Evidence--Negligence--Contributory Negligence. The plaintiff seeks a recovery for the death of her husband, caused by the negligent operations of a train at a street crossing. The evidence and findings are reviewed and it is held, (1) that there was sufficient evidence to warrant the finding of negligence; (2) that the question of contributory negligence was one of fact for the jury.

2. Evidence--Habits of Decedent in Crossing Tracks. The plaintiff was called as a witness by the defendant and testified that her husband was familiar with the crossing, and that she had often been over it with him. On cross-examination she was allowed to testify that he always drove carefully, watching for dangers, and at night stopped to look and listen. It is held that the testimony, if incompetent, was still not prejudicial under the findings.

3. Instructions--Presumptions that Decedent "Stopped, Looked and Listened." An instruction was given, stating in substance that in the absence of any evidence on the subject the jury were authorized to presume that from natural instinct to protect his person and preserve his life the deceased looked and listened for approaching trains before venturing upon the crossing, and if his situation was such as to require him to stop, that he did so. In connection with other instructions defining the duty of the deceased to look and listen, and stating the circumstances in which he was required to stop, the foregoing is approved.

William R. Smith, Owen J. Wood, and Alfred A. Scott, all of Topeka, for the appellant.

Ezra Branine, Harry W. Hart, William H. Von Der Heiden, and Ashton E. Morgan, all of Newton, for the appellee.

OPINION

BENSON, J.:

This appeal is from a judgment for damages for the death of the plaintiff's husband at a railroad crossing in Newton.

The railway company has thirteen parallel tracks extending northeast and southwest through the city connecting its local yards. These tracks cross First street, which extends east and west, in a populous part of the city. The direction of the tracks will be referred to as north and south. The traffic of the main line east, west and south out of and into Newton, and the major part of the switching and local work, is over this crossing, which is in continuous use day and night. The company has long maintained an electric arc light over this crossing to light the crossing and adjacent yards, and to aid the company and the public in the use of the crossing, although not required by ordinance to do so. A switch shanty is located eighty feet south of this light, where a switch tender is on duty day and night. The company maintains extensive shops and a round house near the crossing. On the night of February 20, 1911, at about 8:45 o'clock, Dr. Fike came into the city from the west, driving a two-horse team with a covered carriage. The night was cold and very dark, sleet was falling and a strong wind was blowing. He had on a fur overcoat with collar turned up about his neck and ears, and the side curtains of the carriage were on. The arc light referred to was not burning, having been out for an hour and forty-five minutes. It had been burning irregularly for over a week. There was no light at this crossing except such as might have been afforded by headlights and the lanterns of employees. A switch engine was moving backward, pushing seven freight cars from the north yard to the south yard. At a point 1400 feet north of the crossing the engineer sounded four blasts of the whistle for the switch tender referred to to line up a switch there. The switch tender carrying his lantern from the shanty turned the switch and gave the back up signal, which was repeated to the engineer by a switchman standing on the top of the south car of the train, by a circular motion of his lantern. This signal was answered by two short blasts of the whistle. The engine was then 700 feet from the crossing. It carried a headlight upon each end, but the end of a box car coupled to the engine was immediately in front of the headlight on the south end. The brakeman was facing in the direction of the moving train and wore a heavy storm coat. Dr. Fike, driving east on First street, crossed nine tracks and approached the next one with his team trotting; when he was within fifteen feet of the track, and the south car of the train was seventy feet from the street crossing, the switchman standing on the south car, to use his own language, "Saw the outlines of a double-horse team and buggy, that is, I got a glimpse of it ahead." He immediately gave the stop signal, and yelled, and then heard and felt a collision. The engineer made all possible effort to stop the train but it ran on 300 feet beyond the crossing. It struck the carriage and killed the occupant. The switch tender at the side of the track also saw the horses' heads for a moment when they were 130 feet from him and about fifteen feet from the track upon which the collision occurred. He shouted and waved a stop signal with his lantern. The south car was then about fifty feet from the point of the collision, and the train was running at a speed of fifteen to twenty miles an hour. The bell was ringing all the time. Bells upon other engines at and about the round house and up and down the yards were ringing and whistles were being blown at all hours of the day and night, and there were lights about the shops and roundhouse north and east of the point of the collision.

In answer to special questions the jury found the following additional facts: The hearing of the deceased was not obstructed by the manner in which his coat was buttoned about his neck and ears; the curtains of the buggy interfered with his seeing approaching objects at the side; it was more difficult to see approaching cars on account of the darkness; aside from the darkness a person in First street could have an unobstructed view of nine tracks northeasterly for a distance of a block and a half; there were no obstructions to the view between the point of the accident and 90 feet west thereof for 600 feet northeastwardly; the deceased had been familiar with the crossing for five years; there was nothing to prevent him from seeing that the electric light was not burning; switch No. 7 (the one turned for this train) was 155 feet from the point of collision; a person standing on First street just west of the nine tracks would not have a side view of a train as it approached First street from the electric light plant (which is 1400 feet north); a lighted lantern such as the switchman had could be seen by a person for half a mile looking toward it who had an unobstructed view, and the train was 400 feet north of First street when the switchman swung it as a signal for the train to proceed. Further findings were that the defendant's employees were negligent in failing "to maintain lights in condition at crossings or to provide watchman for such crossing when lights are not in condition, and to display light at west end of train," which negligence consisted in the "absence of light or watchman at crossing and light at west end of train."

The jury further found that if the speed of the team was checked the evidence did not disclose how far this occurred from the point of collision, nor when it occurred, nor whether Dr. Fike took any precautions to learn of the approaching train, and did not disclose how far he was from the place of injury when he did so, nor what precautions he took before undertaking to cross the track when he was injured; nor how far the reflection of a headlight on the west (south) end of the engine could be seen by one standing at or near the crossing, nor whether a headlight so placed next to box cars would throw a light visible that night to one standing in First street west of the nine tracks while the engine was moving between First street and a point 800 feet north; nor how far Dr. Fike could have seen the train just as he drove upon the track, but in the opinion of the jury not to exceed forty feet. To the question whether Dr. Fike stopped his team to look and listen for cars approaching First street from the northeast before undertaking to cross the track the jury answered, "Yes, in the absence of evidence the law presumes he did." Other questions were answered, but the statement of facts first given includes the answers so far as material.

The negligence charged in the petition was that the train was backed upon the crossing at dangerous and unreasonable speed without a crossing signal, flagman or watchman, or other measures to guard against accident with the electric light out and in the darkness.

The defendant argues that the charges of negligence are not proven, and that the death of the plaintiff's husband was caused by his own negligence.

The crossing was a dangerous one. Thirteen tracks crossed the street, with railroad yards, shops and roundhouse near by and the constant switching and moving of cars incident to this important division point. The jury were warranted in finding that ordinary and reasonable care at such a place required that in the absence of the arc light a light ought to have been displayed at the end of the backing train, or a watchman provided. Running such a train over the crossing on a dark stormy night in the...