Hartman v. The Kansas City

• Decision Date: 10 January 1931
• Docket Number: 29,667
• Court: Kansas Supreme Court
• Parties: LAWRENCE HARTMAN, Appellee, v. THE KANSAS CITY, LEAVENWORTH & WESTERN RAILWAY COMPANY, Appellant

294 P. 913

132 Kan. 182

LAWRENCE HARTMAN, Appellee, v. THE KANSAS CITY, LEAVENWORTH & WESTERN RAILWAY COMPANY, Appellant

No. 29,667

Supreme Court of Kansas

January 10, 1931

Decided January, 1931.

Appeal from Wyandotte district court, division No. 2; CLYDE C GLANDON, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

RAILROADS--Accidents at Crossing--Contributory Negligence. A truck driver who was approaching an electric railroad track at a street crossing stopped his motor truck at a stop sign on the street about twenty-five feet from the railroad track, where he looked down the track for approaching cars, but because of foggy conditions he could only see from ten to fifteen feet away. He then started slowly at a speed at which he could have stopped his car within a distance of one foot, and drove upon the railroad track without again looking or taking other precautions for his safety and was struck by a street car and injured. In an action to recover for the injuries it is held that he was guilty of contributory negligence which bars a recovery.

McCabe Moore and A. J. Stanley, Jr., both of Kansas City, for the appellant.

Joseph Cohen, of Kansas City, for the appellee.

OPINION

JOHNSTON, C. J.:

Lawrence Hartman sued the Kansas City, Leavenworth & Western Railway Company to recover damages for injuries sustained in a collision of a car of the defendant with a truck plaintiff was driving in the delivery of milk at an intersection of a public street of Kansas City and the tracks of the defendant. A verdict was returned awarding the plaintiff $ 1,450; $ 1,000 for personal injuries and $ 450 for damages to his truck. The defendant appeals.

Special findings were made by the jury on questions submitted by the court, which are as follows:

"1. If you find for the plaintiff, state wherein you find the defendant, its agents, servants and employees were negligent. A. Operator failed to use proper precaution in not seeing truck, also in not using all available means for making sudden stop.

"2. Did the plaintiff look for approaching cars before entering the intersection of North Thirty-second street with defendant's tracks? A. Yes.

"3. If you answer the preceding question in the affirmative, please state how far south of defendant's south rail plaintiff's car was when plaintiff looked. A. About twenty-five feet.

"4. After plaintiff had reached a point twenty-five feet south of defendant's south rail, did he look for approaching cars? A. Yes.

"5. Did plaintiff see defendant's freight car approaching the intersection? A. No.

"6. If you answer the preceding question in the negative, then state what prevented the plaintiff from seeing an approaching car. A. Account of heavy fog.

"7. At what rate of speed was plaintiff's automobile traveling immediately prior to the collision? A. About ten miles per hour.

"8. In what distance could plaintiff have stopped his automobile driven at the rate of speed found by you in answer to the preceding question? A. Less than five feet.

"9. How far could plaintiff see, looking in an easterly direction from the intersection along defendant's tracks at the time and place in question? A. About ten feet.

"10. If your verdict is for the plaintiff, state (a) what amount you allow the plaintiff for personal injuries; (b) what amount you allow the plaintiff for damage to his automobile. A. (a) $ 1000. (b) $ 450."

Defendant moved that several of the findings be set aside on the ground they were unsupported by the evidence. The motion was overruled. It also assigns error in the overruling of its motion for judgment notwithstanding the general verdict. The principal contention is that the plaintiff was guilty of contributory negligence in driving upon the railroad track without taking precautions for his safety. It is claimed that the evidence is undisputed, that plaintiff approached the crossing on a morning when it was so foggy that he could only see about fifteen feet down the track. He had stopped twenty-five feet back of the track and looked up and down the railroad both ways. He testified that he stopped when his front wheels were five or ten feet in back of the stop-sign set in the pavement, the north edge of which was twenty-five feet south of the south rail of the track. It is said that proceeding across the track without stopping or taking any further precautions to ascertain the safety of crossing, is contributory negligence. By reason of the fact that these facts were undisputed it is argued that the negligence of plaintiff is a question of law for the court, and not only some of the findings should have been set aside, but that judgment should have been rendered for the defendant.

Attention will first be given to the main question discussed, namely that on plaintiff's admissions and undisputed facts, plaintiff was guilty of contributory negligence, and hence judgment should be given for defendant. Plaintiff testified that on April 12, 1929, at about 5:30 a. m., he was driving a milk truck upon a street which intersected the railway of the defendant, that there was a stop-sign or plug on the street about twenty-five feet back of the track, that he stopped when the front end of the truck was at the stop-sign and that he was then sitting about ten or twelve feet back of the sign. He stated that he looked...