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

• Decision Date: 12 February 1916
• Docket Number: 19909
• Citation: Jacobs v. Atchison, T. & S.F. Ry. Co., 97 Kan. 247, 154 P. 1023 (Kan. 1916)
• Parties: JACOBS v. ATCHISON, T. & S. F. RY. CO.[1]
• Court: Kansas Supreme Court

154 P. 1023

97 Kan. 247

JACOBS v. ATCHISON, T. & S. F. RY. CO.^[1]

No. 19909

Supreme Court of Kansas

February 12, 1916

Syllabus by the Court.

It is such negligence as will prevent a recovery for injuries sustained for a driver of an automobile to attempt to cross a railroad track at a grade crossing without looking or listening for the approach of a train, although an electric warning bell is maintained at the crossing and the bell is not ringing.

Engine men in charge of a locomotive attached to a passenger train who cut off the steam and apply the air one-quarter of a mile before reaching a street crossing in a small city, and who suppose that an electric warning bell stationed at the crossing is ringing, are not guilty of wantonness, although they fail to ring the engine bell or sound the whistle for the crossing, and although they go through the city at the rate of 45 miles per hour.

Appeal from District Court, Sedgwick County.

Action by Mary J. Jacobs against the Atchison, Topeka & Santa Fé Railway Company. From judgment for plaintiff defendant appeals. Reversed, with directions to enter judgment for defendant.

W. R Smith, O. J. Wood, A. A. Scott, and Harlow Hurley, all of Topeka, for appellant.

Adams & Adams, of Wichita, for appellee.

OPINION

MARSHALL, J.

In this action the plaintiff seeks to recover for the death of her husband caused by the negligence of the defendant. The defense was contributory negligence on the part of the deceased. The plaintiff recovered judgment. The defendant appeals.

John H. Jacobs, the husband of the plaintiff, met his death by driving his automobile on the defendant’s tracks in front of a swiftly moving passenger train. This occurred on Saturday afternoon at the crossing of the principal street in Valley Center. The defendant maintained an electric bell at this crossing. The jury made special findings of fact as follows:

"(2) For how long a distance east of the railroad track at the crossing in question could one traveling on the highway continuously have in sight a train stationed a quarter of a mile northward of the crossing? Ans. Twenty-eight feet."

"(6) Was the electric bell at the crossing in question ringing when the said train approached said crossing? Ans. No.

(7) Were the engineer and fireman each at his post of duty and in his particular place on the engine as the train in question approached and passed over the crossing in question? Ans. Yes.

(8) How far was the engine from the crossing in question when the fireman first discovered that the automobile would probably not be stopped in time to avoid a collision with the engine? Ans. One hundred fifty feet.

(9) How far was the automobile from the crossing when the fireman first discovered that said automobile would probably not be stopped before it got on the crossing in the way of the engine? Ans. Fifteen feet.

(10) After the fireman on the engine discovered, if he did discover, that the automobile would probably go upon the crossing in the way of the engine, what could have been done by him or the engineer that was not done to prevent the collision in question? Ans. Nothing.

(11) How far was the automobile in question from the crossing when the fireman first saw it approaching the crossing? Ans. Fifty feet.

(12) What particular place on the pilot or engine first came in contact with the automobile? Ans. Side of pilot back three feet from the point.

(13) How far from the crossing did the engineer make his service application of air as the train approached Valley Center, if same was made at all? Ans. One-quarter mile.

(14) What, if anything, would have prevented said Jacobs from seeing or hearing the approaching train in time to have avoided the collision if he had taken the pains to look and listen for same when he was about twenty-five feet from the crossing? Ans. Nothing.

(15) If you find that the engineer cut off steam before he came to the crossing, state how far from said crossing he made such cut-off? Ans. One-quarter mile.

(16) If you find that the negligence of those in charge of the engine caused the injury and death in question, state in what such negligence consisted? Ans. Excessive speed.

(17) What was the usual rate of speed at which this mail train in question usually passed over the crossing in question at Valley Center prior to the date of the collision in question? Ans. Thirty-five miles.

(18) Was the said Jacobs guilty of negligence on his own part which contributed to his injury and death at the time and place in question? Ans. No.

(19) Did the engineer and fireman, as they approached the crossing in question, suppose that the electric bell at the crossing would ring automatically as the engine approached the said crossing? Ans. Yes."

"(21) Give speed of train at time of collision in question. Ans. Forty-five miles."

"(24) At what rate of speed was the automobile running when twenty feet from the crossing? Ans. Ten miles.

(25) Name the different signals given of the approach to the crossing in question by the train in question. Ans. None."

1. The fourteenth finding establishes that the deceased did not look or listen for the approach of a train before driving on the track. Beech v. Railway Co., 85 Kan. 90, 116 P. 213; Cleveland, etc., R. Co. v. Coffman, 30 Ind.App. 462, 64 N.E. 233, 235, 66 N.E. 179; Tobias v. Railroad Co., 103 Mich. 330, 61 N.W. 514, 518.

The vital question in this case is: Did the failure of the electric bell to ring relieve the deceased of the obligation to look and listen before attempting to cross the track? The plaintiff seeks to have the rule in McClain v. Railway Co., 89 Kan. 24, 130 P. 646, Ann. Cas. 1914C, 699, applied in this case. There this court said:

"Ordinarily if a traveler proceeds across a railroad track without taking the precaution to ascertain if there is a train in dangerous proximity he does so at his peril. The application of this rule is modified to some extent by the circumstance that gates have been erected and watchmen employed at crossings. In such case a traveler is not required to exercise the same viligance when he approaches a track as he would at crossings not so guarded." 89 Kan. 30, 130 P. 648 (Ann. Cas. 1914C, 699).

Human intelligence guarded the crossing and operated the gate in that case. In the present case an electrical, mechanical device was intended to give warning of approaching trains. Sometimes this bell would not ring when trains were passing, and at other times it rang when no train was in sight. An electric bell, which at most can be nothing but a warning of an approaching train to those who listen, cannot be classed with a gate thrown across a street to prevent passing over railroad tracks; neither can it be classed with a flagman who stands in the street and stops those who desire to cross when there is danger. It is more nearly analogous to the locomotive bell and whistle. Failure to ring the engine bell or sound the whistle does not relieve a traveler from the duty to look and listen before attempting to cross a railroad track. If the plaintiff’s contention in this respect is correct, a railroad increases its responsibility and liability by putting in electric bells at highway and street crossings. The object in putting in electric bells is to promote public safety, not to increase railroad liability. Silence of such a bell is not an invitation to cross railroad tracks without taking the ordinary precautions.

In McSweeney v. Erie Railroad Co., 93 A.D. 496, 498, 87 N.Y.S. 836, 838, an action for damages for injuries sustained at a crossing where there was an electric bell, the court said:

"The exercise of due care required the deceased, under the circumstances, to look and listen for an approaching train, and the mere fact that the stationary signal bell was not ringing did not relieve him of the imputation of negligence if he failed to exercise this degree of care."

In that case judgment for the railroad was rendered at the close of the plaintiff’s evidence. To the same effect is Cleveland, etc., R. Co. v. Heine, 28 Ind.App. 163, 62 N.E. 455. Cleveland, etc., R. Co. v. Coffman, supra, supports this position, although a new trial was ordered. But a new trial was requested by the defendant, not judgment on the findings. The plaintiff cites Tobias v. Railroad Co., supra, to support his contention that it was the province of the jury to determine whether or not the deceased was guilty of contributory negligence in attempting to cross the railroad track without looking or listening when the electric bell was not ringing. The Supreme Court of Michigan there said that the question of contributory negligence should have been given to the jury, and reversed a judgment for the defendant because it was not given. A dissenting opinion in that case argues that the court should have directed a verdict for the defendant. Wabash R. Co. v. McNown, 53 Ind.App. 116, 99 N.E. 126, 129, 100 N.E. 383, supports the majority opinion in the Tobias Case, supra. We think the better rule is that the failure of an electric bell to ring does not relieve one about to cross a railroad track of the imperative duty to look and listen before crossing; if he fails to do so, he is guilty of such contributory negligence as will prevent his recovery for any injuries sustained, and there is nothing to submit to the jury.

It has been held that it is the positive duty of the driver of an automobile to stop, look, and listen before crossing railroad tracks. A. C. L. R. R. Co. v. Weir, 63 Fla. 69, 58 So. 641, 41 L. R. A. (N. S.) 307, Ann. Cas. 1913E, 753; Earle v. Phila. & R. Ry. Co., 248 Pa. 193, 93 A 1001; Craig v. Penna. R. R. Co., 243 Pa. 455, 90 A. 135; Brommer v. Penna. R. R. Co., 179 F. 577, 103 C. C. A....