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

• Decision Date: 04 May 1946
• Docket Number: 36539.
• Parties: HORTON v. ATCHISON, T. & S. F. RY. CO.
• Court: Kansas Supreme Court

168 P.2d 928

161 Kan. 403

HORTON v. ATCHISON, T. & S. F. RY. CO.

No. 36539.

Supreme Court of Kansas

May 4, 1946

Appeal from District Court, Ford County; Karl Miller, Judge.

Action by Albert Horton against the Atchison, Topeka & Santa Fe Railway Company for damages to plaintiff's semitrailer truck unit as result of being struck by defendant's passenger train at a railroad crossing. From an order sustaining defendant's demurrer to plaintiff's second amended petition, plaintiff appeals.

HARVEY C. J., and SMITH and PARKER, JJ., dissenting.

Syllabus by the Court.

1. A railway track is itself a warning of danger. Standing boxcars placed on a sidetrack which partially obstruct the view of main tracks constitute an additional warning of the harzard confronting a traveler and require the exercise of greater vigilance and care to learn if there is a present danger in crossing.

2. While it is the duty of one about to cross a railway track to first assure himself he may do so with safety, this court has never adopted the rigid rule obtaining in some states which requires a traveler, in all cases, to stop, look and listen. It is committed to the more liberal rule which requires a traveler to exercise diligence commensurate with the hazard.

3. It is not enough that a traveler approaching a series of railroad tracks stop, look and listen at a point from which his view of the main tracks is sufficiently obstructed that he cannot be assured he can proceed with safety, when looking on nearer approach to main tracks would reveal the danger.

4. Where obstructions to a traveler's view prevent him from otherwise ascertaining the fact that he may cross a railroad track with safety, then it is his duty to stop to make sure of his safety before crossing. (Following Williams v Iola Electric Railroad Co., 102 Kan. 268, 170 P. 397 Syl. ¶2.

5. 'The driver of an automobile can not recover damages for injury to himself and his machine, where he approaches a railway track at a place at which he can not see along the track until his automobile is in a place where it will be struck by a passing engine or cars, and does not stop his car to ascertain whether or not there is danger, although he listens before going into the place of danger and does not hear any engine or cars coming.' (Folowing Wehe v. Atchison, T. & S. F. Railway Co., 97 Kan. 794, 156 P. 742, Syl., L.R.A.1916E, 45, Ann.Cas.1918D, 23.)

6. Where a petition affirmatively alleges defendant 'had placed boxcars' on a sidetrack outside of an incorporated village, ninety feet from each side of the intersection, which partially obstructed the driver's view of the main tracks but in nowise alleges the boxcars were connected with an engine, or that they were moving, or that the driver believed they might be moved, the petition is not reasonably susceptible of the interpretation the driver believed he might be struck by a train on the sidetrack.

7. The duty of a traveler to look and listen where an opportunity exists is an absolute and continuing duty. It requires him to look and listen at the point nearest to a main track where he may do so with safety, that is, at the point where it will do the most good.

8. A person is presumed to have seen what he could have seen had he looked.

9. A person who attempts to negotiate a railway crossing directly in front of a rapidly moving train, of which approach he is or should be aware, is guilty of contributory negligence which bars recovery.

10. An act of negligence proximately contributes to a collision when without the act of negligence the collision would not have occurred.

11. Contributory negligence is an affirmative defense and the burden of establishing it ordinarily rests upon the defendant but where a petition on its face discloses such negligence it is demurrable.

HARVEY, C. J., and SMITH and PARKER, JJ., dissenting.

Appeal from District Court, Ford County; Karl Miller, Judge.

Action by Albert Horton against the Atchison, Topeka & Santa Fe Railway Company for damages to plaintiff's semi-trailer truck unit as result of bweing struck by defendant's demurrer to plaintiff's second amended petition, plaintiff appeals.

Affirmed.

Russell L. Hazzard, of Dodge City, for appellant.

Henry Schulties, Jr., of Topeka (C. J. Putt and W. E. Treadway, both of Topeka, and Carl Van Riper, of Dodge City, on the briefs), for appellee.

WEDELL Justice.

This is an appeal from an order sustaining defendant's demurrer to plaintiff's second amended petition.

The action was one to recover damages to property resulting from a collision at a railroad crossing. The petition is short. Omitting formal parts and allegations of damages, the petition reads:

'On the 23rd day of November, 1944, about 2:30 P.M. of said day, plaintiff's semi-trailer truck unit, driven by M. P. Phillips, an employee of plaintiff, while traveling east on the east and west road and while crossing defendant's railroad track at a point about three-fourths of a mile southwest of Wright, Kansas, was struck by defendant's passenger train, which said passenger train plaintiff believes and therefore alleges was train number 4.

'At said intersection, the defendant's tracks run in a direction from the southwest to the northeast; at a distance of about 2,000 feet southwest of said intersection said tracks begin curving to the right as one faces the southwest and at a distance from said intersection of about 3,000 feet said track has curved a considerable distance to the right and is still curving to the right.

'At said intersection three tracks cross said highway upon which the plaintiff's truck-trailer unit was traveling; the track to the north is a side track and the other two tracks are main tracks and used by passing trains.

'On said side track the defendant had placed about 45 box cars, adjacent to each other, to the southwest of said intersection, the nearest box car being approximately 90 feet from said intersection and the most distant box car about 1,700 feet from said intersection; the defendant had also placed a great number of box cars on said side track northeast of said intersection, the exact number plaintiff does not know, the nearest car of which was approximately 90 feet from said intersection.

'As the said M. P. Phillips approached said intersection, he stopped with the tractor of his unit within 5 feet of said sidetrack; he looked both ways for approaching trains on either of said other two tracks; when he attempted to look to the southwest his little grandson, who was with him, was in the way, Phillips moved the boy back against the seat and looked out his right window and could see down the track about 300 or 400 feet; he saw no train coming, he then looked back over said row of box cars for smoke or other signs of an approaching train and heard none; he then started on across said intersection and when he had gotten almost across said train struck the right rear corner of said semi-trailer; that had the said M. P. Phillips gotten out of said truck, when he stopped and walked upon main tracks of said defendant, he could not have seen said train because of said curve and said box cars on said switch and the rate of speed at which said train was traveling.

'The defendant or its employees did not blow the whistle or ring the bell on the locomotive of said train from the time said train was within 80 rods of said intersection until said train was less than 100 feet of said intersection; that said train was running at a speed of approximately 70 miles per hour; that the collision above set out was the direct and proximate result of the negligence of the defendant in failing to blow said whistle, ring said bell and running at said speed under the facts and circumstances above set out.'

The demurrer challenged the sufficiency of the petition to state a cause of action. It will be observed the specific acts of negligence charged against defendant are the failure to blow the whistle and ring the bell of the locomotive and the speed of the locomotive under the facts and circumstances stated in the petition. In substance it is defendant's contention that, conceding for the purpose of the demurrer defendant was negligent as charged, the allegations of the petition clearly disclose appellant's driver was guilty of contributory negligence without which the accident would not have occurred.

In passing on the demurrer all facts well pleaded are, of course, admitted to be true. Furthermore, plaintiff is entitled to have the petition interpreted liberally in his favor with respect to any indefiniteness or uncertainty in its allegations and to have all inferences reasonably to be drawn therefrom resolved in his favor.

The petition briefly and plainly discloses the existing conditions as the driver approached the sidetrack from the west. There were three tracks, the sidetrack and two main tracks. The train approached the intersection from the southwest on the middle track, which was the nearest main track to appellant's driver as he approached from the west. We shall refer to that track as the main track. The sidetrack was unoccupied for a distance of ninety feet to each side of the intersection. From that point to the southwest for a distance of approximately 1,700 feet 'defendant had placed' about forty-five boxcars on the sidetrack. At the intersection the tracks ran from the southwest to the northeast. At a point approximately 2,000 feet southwest of the intersection the tracks began curving to the right as one faces the southwest. The curve continned for a distance exceeding 1,000 feet. In a similar manner 'defendant had placed' boxcars on the sidetrack to the left or northeast of the intersection. For the purpose of the demurrer the parties stipulated...