Holman v. The Atchison

• Decision Date: 09 June 1923
• Docket Number: 24,558
• Citation: 215 P. 1111,113 Kan. 710
• Court: Kansas Supreme Court
• Parties: CARRIE L. HOLMAN, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

215 P. 1111

113 Kan. 710

CARRIE L. HOLMAN, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

No. 24,558

Supreme Court of Kansas

June 9, 1923

Decided January, 1923.

Appeal from Reno district court; WILLIAM G. FAIRCHILD, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

AUTOMOBILE--Railroad Crossing--Damages--Contributory Negligence. Record of an action for damages for injuries sustained in a railway crossing accident examined, and, held that plaintiff's contributory negligence was not so clearly established as to make it a question of law, and that the record discloses no error justifying a reversal of the judgment.

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

John R. Beeching, John F. Rhoades, and William H. Burnett, all of Hutchinson, for the appellee.

OPINION

DAWSON, J.:

The plaintiff brought this action for damages for injuries sustained in a collision with defendant's caboose at a street crossing near the railway depot at Hutchinson.

As plaintiff and her husband were driving southward in an automobile on a public street and across the defendant's east-and-west tracks, a caboose propelled by an engine came from the west and backed into the automobile and injured the plaintiff.

The negligence alleged was the operation of the engine and caboose at an excessive and dangerous rate of speed at a public crossing, without warning, sign or signal of the train's approach.

Defendant's answer denied its negligence, and alleged that the accident and its consequences were caused solely by the negligence of plaintiff and her husband in driving across the railway tracks at excessively fast speed without giving heed to the warnings of danger given her by the crossing tracks and signals; that plaintiff was familiar with the crossing and that the tracks thereabout were in constant use in switching cars to the local industries and in making up passenger and freight trains, and that defendant failed to ascertain if the way was clear by looking and listening, and if necessary by stopping to see if a train was approaching: "and if the said plaintiff gave any attention thereto she failed to continue such attention when the same was needed and failed to warn her husband of the danger which she saw or might have seen by merely looking"; and, "that if she had given her said husband warning, he could and would have stopped said car before the same reached a place of danger."

The evidence for plaintiff tended to show that she and her husband stopped their car before crossing the railway tracks and ascertained that there was no train coming from the west within the range of their vision, which at their stopping point about 3 feet north of the tracks was about 150 feet. They then proceeded to cross and their car was struck by the backing caboose 35 feet south of the point at which they stopped, although plaintiff, who kept looking westward, did not see the caboose until it was about to strike their car. There was testimony that the caboose and engine came from the west at a sudden burst of speed of 25 miles an hour, and that the noise of another engine east of the crossing had prevented plaintiff from hearing the approach of the caboose.

The evidence for the defendant was altogether at variance with that of plaintiff, and if it had been given credence it would have established clearly that defendant committed no negligence and did not propel the caboose at any considerable rate of speed; that a switchman on foot kept up with the caboose as it traveled, and that plaintiff's car speeded over the crossing without any precautions; that if plaintiff had looked at the only place it would have done any good to look she could not have failed to see the engine and caboose, and that the injuries of plaintiff were caused by her own negligence and that of her husband. The jury's verdict was for plaintiff. Certain special questions ware also answered:

"Q 1. How far north of the point of collision was the south side of the Rock Mill and Elevator Company coal bin? [5 feet north of tracks.] A. Thirty-five feet.

"Q. 2. After the automobile had passed the Rock Mill and Elevator Company coal bin, was there at that time any obstruction to prevent Mrs. Holman from seeing an approaching train as far back as the depot? A. No.

"Q 3. Do you find from the evidence that there was a brakeman on top of the way car with a lantern, who whistled as the engine...