Griffith v. Atchison

• Decision Date: 07 February 1931
• Docket Number: 29,718
• Citation: 295 P. 687,132 Kan. 282
• Court: Kansas Supreme Court
• Parties: LENNA B. GRIFFITH, MAE V. GRIFFITH and EVA S. HAGERMAN, Appellees, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY and FELIX W. A. KNOLL, Appellants

295 P. 687

132 Kan. 282

LENNA B. GRIFFITH, MAE V. GRIFFITH and EVA S. HAGERMAN, Appellees, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY and FELIX W. A. KNOLL, Appellants

No. 29,718

Supreme Court of Kansas

February 7, 1931

Decided January, 1931.

Appeal from Sedgwick district court, division No. 4; ISAAC N WILLIAMS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS--Crossing Accident--Violation of Ordinance--Proximate Cause. Rule followed that while the breach of a city ordinance by a railway company operating within its corporate limits is negligence per se, yet no civil liability in damages can be imposed on the railway company therefor unless the breach was the proximate cause of the loss or injury upon which the claim for damages is predicated.

2. SAME--Operation--Purpose of Ordinance Requiring Lookouts. A city ordinance requiring a watchman to be stationed on the advancing end of all engines, cars and trains being switched, backed or propelled along a railway track within the corporate limits of the city is a traffic regulation for the protection of persons and vehicles on the streets of the city, and is not a valid or binding regulation governing the duty of railroads towards railway employees whose duties require them to be stationed at crossings of railway tracks over the streets of the city.

3. SAME--Review. The record examined and the special ground of liability upon which the jury found a verdict against the railway company--its failure to have a watchman on the advancing end of the engine--considered and not sustained.

4. SAME--Crossing Accident--Employee Not Entitled to Benefit of Ordinance Requiring Lookout. Under the circumstances stated in the opinion the defendant railway company was not liable for the death of a flagman stationed at a street and railway crossing to warn persons of approaching trains, where an automobile driven by a person who refused to heed the flagman's warning of an approaching train was struck by the train and propelled against the flagman, killing him.

5. APPEAL AND ERROR--Effect of Failure to File Brief and Abstract. Where the defendant automobile driver appealed from a judgment of damages awarded against him for the death of the flagman, but filed neither abstract nor brief, his appeal will be regarded as abandoned, and the judgment against him affirmed.

William R. Smith, Alfred A. Scott and C. J. Putt, all of Topeka, for the appellants.

C. H. Brooks, Willard Brooks, Howard T. Fleeson and Howard T. Horrell, all of Wichita, for the appellees.

Dawson J. Harvey, J., dissenting.

OPINION

DAWSON, J.:

This was an action by plaintiffs for the wrongful death of their father, Joseph D. Griffith, a railway crossing flagman in the service of the Union Terminal Railway Company in Wichita.

The regrettable tragedy happened in this fashion: In Wichita there is a street which runs east and west named Central avenue. The Santa Fe Railway Company has eight railway tracks which run north and south, lying side by side and crossing Central avenue. Griffith was stationed at the crossing to protect persons and traffic at the intersection of the railway tracks and Central avenue. His duty was to raise and hold a stop disk about 24 inches across to warn pedestrians, automobiles and other street traffic when engines and cars were approaching the crossing.

On the morning of March 17, 1928, one Felix W. A. Knoll came along Central avenue from the east, driving an automobile. As he approached the railway tracks a Santa Fe switch engine with rear end foremost came from the north, drawing several freight cars. Griffith, the watchman, raised his stop disk to halt Knoll in the automobile. Knoll saw the train approaching but believed he could cross before it reached the crossing and did not stop. Griffith, however, planted himself in the path of the oncoming automobile, standing there until it almost touched him. Knoll killed his engine and ere he could get it started again and get out of the way the engine and cars were upon him. Griffith, seeing a collision was inevitable, started to get out of the way and ran towards the southwest. Knoll headed his automobile in the same direction. The railway engine struck the automobile. The automobile ran down Griffith and killed him.

Griffith's three daughters, all women of maturity, brought this lawsuit, alleging negligence on the part of Knoll and the railway company. One ground of negligence charged against the railway company was the breach of an ordinance of the city of Wichita which required all railway companies--

"To provide and maintain a watchman or switchman who shall be constantly upon the advancing end of any engine, cars, or if more than one car, upon the advancing end of the foremost car, whenever any such engines, car or cars are being switched or backed or propelled along or upon any railroad track within the corporate limits of the city."

Griffith was 79 years old, and drew a salary of $ 70 per month from the Union Terminal Railway Company. His life expectancy was four and three-quarters years.

The defendants filed separate answers. The railway's pleaded defenses were that the flagman's death came about through no fault of the railway company; that it occurred because of the negligence of Knoll and because of the contributory negligence of the deceased. It also pleaded that the flagman's death was due to the assumed risks of his employment.

Knoll's defense was a general denial; that he was not at fault; and that Griffith's death was caused by his own negligence or by that of the railway company or both.

Jury trial; general verdict for plaintiffs for $ 10,000. Special questions were answered. Space must be taken for most of these:

"No. 1. Q. What did Joseph D. Griffith do when he first noticed the approach of defendant's train to the crossing in question? A. He took his signal and went to the center street.

"No. 2. Q. Did the flagman, Joseph D. Griffith, undertake to notify and stop defendant, Knoll, in his automobile, before he entered upon the crossing where the collision occurred? A. Yes.

"No. 3. Q. What effort, if any, did Knoll make to avoid the collision in question after he first noticed the approach of defendant's train to the crossing in question? A. Nothing.

. . . .

"No. 5. Q. How far was the train from the crossing when flagman Griffith first learned of its approach? A. Approximately 500 feet.

"No. 6. Q. If the flagman signaled Knoll of the approach of the train, how far was Knoll from the place of the collision at the time he was signaled by the flagman? A. Sixty feet or more.

"No. 7. Q. After observing Knoll approaching what did the flagman do? State fully. A. Signaled him to stop.

. . . .

"No. 9. Q. If you find against the defendant railway company, state in what its negligence toward the flagman in which you base your verdict consisted. A. By not having a watchman on the advancing end of the train.

. . . .

"No. 11. Q. If you find that negligence of the railway company was a proximate cause or one of the proximate causes of the accident, of what did that negligence consist? A. Of not having the proper watchman on the advancing end of the train.

"No. 12. Q. If you find that negligence of the defendant Knoll was a proximate cause, or one of the proximate causes of the accident, of what did that negligence consist? A. By not obeying the signal of the watchman to stop at a safe distance.

"No. 13. Q. At the time defendant Knoll entered upon the crossing, was flagman Griffith signaling traffic to stop at said crossing? A. Yes.

"No. 14. Q. Would the accident have been avoided if the flagman Griffith had not stopped and stood in front of the Knoll car? A. No.

"No. 15. Q. Do you find any acts of negligence on the part of the flagman Griffith contributing to the cause of the accident? A. No.

"No. 16. Q. If you find for the plaintiffs, state whether or not the acts of defendant Knoll simply furnished the condition for the accident or were the proximate cause thereof. A. Proximate cause.

"No. 17. Q. After defendant Knoll's car was stalled on the track on which the train was approaching, could the train have been stopped and the accident avoided? A. Yes."

Defendants filed separate appeals.

The railway company assigns various errors on rulings of the court, on the instructions, and on the excessive verdict; but the main contention is that the sole negligence which the jury found against it--the want of a watchman on the advancing end of the engine in conformity with the city ordinance--was not the proximate cause of the death of the flagman.

The manifest purpose of the city ordinance was an exercise of the city's police power to protect persons and property on the streets from injury by passing trains. The ordinance was not designed to regulate the operation of railway traffic for the protection of railway employees. While the breach of a city ordinance by a railway company is negligence per se, liability in damages cannot be predicated on its violation unless the breach of the ordinance is the proximate cause of the injury and damage, or substantially contributes thereto. (Williams v. Electric Railroad Co., 102 Kan. 268, 271, 170 P. 397; Cooper v. Railway Co., 117 Kan. 703, 232 P. 1024; Whitcomb v. Atchison, T. & S. F. Rly. Co., 128 Kan. 749, 751, 280 P. 900.)

Griffith the flagman, knew the engine and cars were approaching. He was...