Grisamore v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 12 June 1965
• Docket Number: No. 43968,43968
• Citation: 195 Kan. 16,403 P.2d 93
• Parties: Bonnie M. GRISAMORE, As Administratrix of the Estate of Milo B. Grisamore, Deceased, Appellant, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, a Corporation, Appellee.
• Court: Kansas Supreme Court

Page 93

403 P.2d 93

195 Kan. 16

Bonnie M. GRISAMORE, As Administratrix of the Estate of Milo B. Grisamore, Deceased, Appellant, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, a Corporation, Appellee.

No. 43968.

Supreme Court of Kansas.

June 12, 1965.

Syllabus by the Court

1. Ordinarily a railroad company has no particular duty to warn an approaching motorist that a train is standing on a crossing as the presence of the train is of itself sufficient warning under usual circumstances.

2. Unusual dangerous conditions prevailing at a crossing may require a railroad company to anticipate that the mere presence of a train standing thereon will not adequately warn users of the highway and the unusual hazard will make additional warnings necessary.

3. Where a train is standing on an unusually dangerous crossing blocking traffic on a public thoroughfare a railroad company is under a duty to use reasonable means to warn the traveling public and the character of the means will depend on the particular conditions and circumstances surrounding the crossing.

4. A railroad company may be liable for injuries received by a motorist colliding with a railroad car on a crossing where normal headlights do not reveal the obstruction or where a trap is created by an illusion of safety revealed by the headlights.

5. The rule charging a motorist who drives into a railroad car standing on a crossing, which was not unusually dangerous, with contributory negligence is an application of the rule that a driver of a motor vehicle must correlate his speed with his ability to stop within the range of his vision.

6. The Supreme Court of Kansas has recognized qualifications or exceptions to the general rule that a driver must be able to stop his car within the clear distance ahead, such as where the rays from headlights are absorbed by the obstructing object; where there is an object blending with the street or general background; where the vision of the approaching motorist was affected by street lights near the obstructing object or on the opposite side of it, or where the obstructing object was on a grade so that the light beams projected under and past it.

7. A demurrer to a petition admits all facts well pleaded, and in considering the sufficiency of a petition on a demurrer all allegations must be liberally construed in favor of the pleader and all reasonable inferences to be drawn therefrom must be indulged in his favor.

8. Whether or not a railroad crossing is unusually dangerous is a question of fact, but whether or not the evidence is sufficient to establish the fact is a question of law.

9. The allegations of a petition in an action to recover damages for injuries and death as the result of a collision between a truck and a railroad car blocking a street crossing are examined and they are held to be sufficient to constitute a cause of action as against a demurrer.

Charles M. Cline, Wichita, argued the cause, and Emmet A. Blaes, Roetzel Jochems, Robert G. Braden, J. Francis Hesse, James W. Sargent, Stanley E. Wisdom, Cecil E. Merkel, Harry L. Hobson, Bruce W. Zuercher, L. D. Klenda, and Richard A. Loyd, Wichita, were with him on the briefs for appellant.

Charles W. Harris, Wichita, argued the cause, and C. J. Putt, W. E. Treadway, J. B. Reeves and Roth A. Gatewood, Topeka, Lawrence Weigand, Lawrence E. Curfman, Byron Brainerd, Orval J. Kaufman, J. Ruse McCarthy, Donald A. Bell, J. L. Weigand, Jr., Spencer L. Depew, Paul M. Buchanan, and Charles R. Moberly, Wichita, were with him on the briefs for appellee.

HATCHER, Commissioner.

This is an appeal from a judgment sustaining a demurrer to plaintiff's petition.

On September 29, 1961, at about 12:15 A.M., Milo B. Grisamore was traveling south in a 1959 Chevrolet pick-up truck on St. Francis Street in the city of Wichita, Sedgwick County, Kansas. The street crosses certain railroad tracks used and maintained by the defendant in the 70 block south. As Grisamore reached the railroad tracks one of defendant's trains was blocking the crossing and his truck collided with one of defendant's cars, injuring juring him and subsequently causing his death on September 30, 1961.

The specific facts with which we are concerned must be accepted as alleged in the petition and are as follows:

'Specific Negligent Acts of Defendant. The 700 block on South St. Francis Street, in the area where it intersects with defendant's tracks and where the collision occurred, is a one-way street for southbound traffic, is poorly lighted, and is heavily traveled with two and three lanes of southbound traffic. In addition, the tracks cross the street at a grade and the view of the tracks, both to the east and to the west of the crossing, is obscured by buildings which are located a short distance from the street and the tracks. * * * At the time of the collision the train was stopped and entirely blocking the street. Defendant had two flagmen or switchmen on the south side of the train where there was no traffic, but none on the north side of the train to warn oncoming traffic. All of the aforedescribed conditions rendered the crossing more than ordinarily dangerous, and the defendant failed to exercise that degree of reasonable care required commensurate with the conditions existing at and near the aforesaid crossing; in addition, the defendant was negligent per se in violating certain city ordinances designed for the protection of the public. Specifically, the defendant was negligent in the following particulars in the operation of its train and the maintenance of the aforesaid crossing:

'(1) In failing to position flagmen, switchmen, or other employees on the north side of the train where they could be seen and could have warned Milo B. Grisamore and others of the presence of the train.

'(2) In failing to have the crossing area and train properly lighted for the view of plaintiff's husband and other approaching travelers.

'(3) In failing to maintain sufficient and adequate control and warning devices at the crossing to alert plaintiff's husband and other travelers of the existence of the dangerous crossing and the presence of the train at the crossing.

'(4) In failing to maintain its existing warning device in a safe and proper condition.

'(5) In failing to comply with Wichita City Ordinance 12.04.090 which reads as follows:

"Standing of cars near grade crossings. Whenever the tracks of a railroad cross a street or highway at a grade, it shall be unlawful to leave any railroad car or engine standing within thirty feet of the roadway unless the crossing is protected by a flagman.'

'(6) In failing to comply with Wichita City Ordinance 12.04.100 which reads as follows:

"Erection and maintenance of railroad signals.

'(a) At the railroad grade crossings listed in any schedule approved by the Board of Commissioners it shall be the duty of the designated railroad to maintain and operate a clearly visible electrical or mechanical railroad signal of a type approved by the traffic engineer.

'(b) All railroad signals erected in compliance with this section shall be considered as official traffic-control devices." (Emphasis supplied.)

The action was brought by the plaintiff for the benefit of the heirs at law of Milo B. Grisamore and was presented in two counts. Count one requested recovery in the sum of $25,000 for the wrongful death. Count two requested recovery in the amount of $3,000 for hospital, medical and funeral expenses, and $10,000 for the decedent's pain and suffering following the accident until the time of his death.

The defendant demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action.

The trial court sustained the demurrer stating only that 'the same is hereby sustained.' The plaintiff has appealed.

It would appear from the briefs filed herein that the trial court sustained the demurrer on the grounds that the petition (a) failed to state facts showing that the defendant was guilty of actionable negligence, and (b) alleged facts showing that the plaintiff's cause of action was barred by the contributory negligence of the deceased.

It might be helpful if we first consider the general principles of law that should guide us in the determination of the issues presented. No general rule of law is available from which the rights and liabilities growing out of all accidents occurring at railroad crossings may be determined. It necessarily results that each individual case must be determined on its particular conditions and circumstances. As was stated in Drake v. Moore, 184 Kan. 309, 315, 336 P.2d 807:

'* * * There are, of course, certain fundamental principles of law applicable to negligence actions generally, but in the final analysis the facts of each particular case determine its decision when tested by those principles. Goodloe v. Jo-Mar Dairies Co., 163 Kan. 611, 617, 185 P.2d 158; and Townsend [,Administrator] v. Jones, supra [183 Kan. 543, 331 P.2d 890].'

It may be suggested, for the purpose of avoiding two separate discussions, that the same decisions will give us general rules for determining both the negligence of the railroad and the contributory negligence of the driver of the vehicle at the crossing. The duty of a railroad to a motorist approaching a crossing is directly affected by the care required of the motorist. If the motorist would have been able to see the hazard had he looked and been able to avoid the collision had his automobile been in proper condition and under proper control, the railroad has no obligation which could result in its negligence.

It was stated in Jones v. Atchison, T. & S. F. Rly. Co., 129 Kan. 314, on page 315, 282 P. 593, on page 594:

'* * * The railway company's duty extended no further than to exercise reasonable care, and it was not required to foresee that on one night of a period of history the driver of a lawfully equipped and operated truck might be so completely...