Hooker v. Missouri Pac. R. Co.

• Decision Date: 05 March 1932
• Docket Number: 30312.
• Citation: 134 Kan. 762,8 P.2d 394
• Parties: HOOKER v. MISSOURI PAC. R. CO.
• Court: Kansas Supreme Court

8 P.2d 394

134 Kan. 762

HOOKER v. MISSOURI PAC. R. CO.

No. 30312.

Supreme Court of Kansas

March 5, 1932

Syllabus by the Court.

Guest riding in cab of truck which collided with train at street crossing held contributorily negligent in failing to see approaching train.

The proceedings considered in an action for damages for injury sustained by a person riding in an autotruck driven by another when the truck collided with the engine of a freight train at a street crossing of the railway track, and held, a motion for judgment for defendant, notwithstanding the general verdict for plaintiff, should have been sustained.

Appeal from District Court, Sedgwick County, Division No. 2; Thornton W. Sargent, Judge.

Action by Doris Hooker, an infant, by Lester Wilkinson, as her next friend, against the Missouri Pacific Railroad Company. Judgment for the plaintiff, and the defendant appeals.

Reversed and cause remanded, with direction.

Arnold C. Todd, of Wichita, and W. P. Waggener, J. M. Challiss, O P. May, and B. P. Waggener, all of Atchison, for appellant.

William Keith, of Wichita, for appellee.

BURCH J.

The action was one for damages for injury sustained by a person riding in an autotruck driven by another when the truck collided with the engine of a freight train at a street crossing of the railway track. Plaintiff recovered, and defendant appeals.

The accident occurred in November, 1929, at the intersection of defendant's track and Edwards avenue in Wichita. Eugene Hooker, plaintiff's brother, was driving the truck. He was on the way to work, and plaintiff was on the way to Wichita University, which she was attending. Plaintiff was in the habit of going in the truck across the railroad track to Douglas avenue, where she took a street car to the university. Plaintiff testified: "The weather that morning was misty and sleety, just a little, and was cloudy rather chilly like."

She was riding in the cab of the truck, at the right side of the driver, and the window on her side was down a few inches. The truck was about ten feet long, and was equipped with brakes with which it could be stopped, when going at a rate of eight miles per hour, about instantly; that is, within a distance less than length of the truck, or about the length of the truck. The train came from the west toward the right side of the truck. Plaintiff testified she did not see or hear the train, did nothing to warn her brother, made no suggestion relating to his driving, and he drove on the track without stopping.

The jury returned the following special findings of fact:

"5. How fast was the automobile traveling as it approached the crossing? A. Approximately eight miles per hour.

"6. At what distance from the crossing could the train have been seen by Doris Hooker on Edwards avenue when she was (a) fifteen feet north of crossing? A. Approximately 600 feet. (b) Ten feet north of crossing? A. Approximately 600 feet.

"7. Did plaintiff look for an approaching train? A. No.

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

A motion was made for judgment, notwithstanding the general verdict, and the motion was denied.

If numerous previous decisions of this court have not made clear the fact that a railroad track is a warning to auto vehicle drivers of possible horrible death, and the fact that a normal guest of an auto vehicle driver, having equal opportunity with the driver to see an approaching train,...