Heinen v. The Atchison

• Decision Date: 07 April 1928
• Docket Number: 27,574
• Citation: 125 Kan. 612,266 P. 35
• Court: Kansas Supreme Court
• Parties: MRS. ANTHONY HEINEN, Appellant, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellee

266 P. 35

125 Kan. 612

MRS. ANTHONY HEINEN, Appellant, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellee

No. 27,574

Supreme Court of Kansas

April 7, 1928

Decided January, 1928

Appeal from Lincoln district court; DALLAS GROVER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS--Accident at Crossing--Contributory Negligence--Judgment on Special Findings. In an action against a railroad company to recover for the death of a person which occurred in a collision between an automobile in which the person killed was riding and the engine of a passenger train at a crossing of the railroad and a public road, it was not error for the court to render judgment for the defendant on the findings of fact returned by the jury and on all the evidence introduced on the trial.

2. SAME--Crossing Signs--Sufficiency. Section 66-2,121 of the Revised Statutes does not require railroads to maintain, at the crossings of railroads and public highways, crossing signs extending all the way across the public highway.

Jerry E. Driscoll, of Russell, and John J. McCurdy, of Lincoln, for the appellant.

William R. Smith, Owen J. Wood, Alfred A. Scott, Alfred G. Armstrong all of Topeka, and David Ritchie, of Salina, for the appellee.

OPINION

MARSHALL, J.:

The plaintiff prosecutes this action to recover damages for the wrongful death of her husband. The trial was to a jury, which answered special questions and returned a verdict in favor of the plaintiff for $ 10,000. Judgment was rendered in favor of the defendant "upon the special findings of fact heretofore returned herein, and upon all the evidence admitted upon the trial." The plaintiff appeals.

The special questions submitted were answered by the jury as follows:

"1. On and prior to the 28th day of September, 1923, was the deceased, Anthony Heinen, familiar with said highway and railroad crossing? A. No.

"2. If you answer question No. 1 'No,' then state if, at said time, September 28, 1923, the defendant railroad company had provided sufficient and adequate danger signal or signals at or near said crossing so as to warn persons unfamiliar with said highway and crossing of the approaching dangers, if any? A. No.

"3. Did the defendant railway company at the time of the collision in question have a regular crossing sign in position at the crossing in question? A. Yes--cross-arm sign.

"4. If you answer the preceding question 'Yes,' then at what distance east of the crossing in question could such crossing sign be seen by travelers coming from the east towards said crossing on the road in question? A. About 125 feet to 150 feet.

"5. How far east of the crossing in question could a train coming from a southerly direction be seen by travelers coming west on the road in question? A. A train coming from a southerly direction and at a point about 55 feet south of said crossing, could be seen by a traveler coming from the east about 125 feet to 150 feet.

"6. At what distance from the crossing in question could a train coming from the south be seen from a point on said road? A. (a) Sixty feet east of the crossing? About 700 feet. (b) Fifty feet east of the crossing? About 1,300 feet. (c) Twenty-five feet east of the crossing? About 1,700 feet.

"7. At what rate of speed per mile per hour was the automobile driven by the deceased being run upon approaching the railroad crossing in question? A. About 30 miles to 35 miles per hour.

"8. At what rate of speed per mile per hour was the train in question being run just preceding the collision in question? A. About 20 miles to 25 miles per hour.

"9. Were there any obstructions on the defendant's right of way that obstructed the view of a train coming from the south? A. No.

"10. If you answer the preceding question 'Yes,' then state fully what such obstructions were?

"11. Were there any obstructions east of the defendant's right of way that obstructed the view of an approaching train from the south? A. Yes.

"12. If you find that the defendant was negligent in any manner, set out fully of what such negligence consisted? A. The defendant was guilty of negligence in that they did not comply with the statute which requires every railway corporation to erect and maintain certain kinds of signal at crossing of this kind.

"13. Were there any obstructions adjacent to the public highway east of the defendant's right of way, that obstructed the view of the crossing sign at the crossing? A. Yes.

"14. If you answer the preceding question 'Yes,' then state fully what such obstruction or obstructions were? A. The overhanging branches of a large elm tree.

"15. If you answer the thirteenth question 'Yes,' and answer question No. 14 by setting out what such obstructions were, then state where such obstructions were located? A. About 100 feet east of said crossing and adjacent to the public highway.

"16. If you answer question No. 13 'Yes,' then state how far east of the crossing in question such obstruction commenced to interfere with a plain view of the crossing sign? A. About 150 feet.

"17. Did the engineer of the defendant's train sound the engine whistle at a point approximately 80 rods away from the crossing in question, as it was coming toward said crossing in question? A. No.

"18. Was the deceased racing his car with the car of the witness Lowery, coming west on the public highway running east from the crossing in question? A. No.

"19. Did the deceased use any precautions to ascertain whether or not he was approaching a railroad crossing? A. No.

"20. If you answer question No. 19 'Yes,' then state fully what such precautions were? A. --."

1. Was it error for the court to render the judgment that was rendered for the reasons that were given? The evidence established that the plaintiff's husband was traveling into Emporia from the east on a paved highway which crossed the railroad tracks of the defendant near the city limits of that city. There was another automobile coming from the east at the same time, traveling to Emporia. At the railroad track there was an ordinary railroad crossing sign which could be distinctly seen from 125 to 150 feet from the railroad track. The crossing sign was a cross-arm sign consisting of...