Jamison v. The Atchison

• Decision Date: 08 January 1927
• Docket Number: 26,974
• Court: Kansas Supreme Court
• Parties: M. F. JAMISON, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

252 P. 472

122 Kan. 305

M. F. JAMISON, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

No. 26,974

Supreme Court of Kansas

January 8, 1927

Decided January, 1927.

Appeal from Woodson district court; ROBERT E. CULLISON, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

RAILROADS -- Accident at Crossing -- Contributory Negligence -- Last Clear Chance. In an action for damages for personal injuries sustained by plaintiff in a railway-crossing accident, where the cause was tried on the theory that plaintiff's negligence would bar a recovery against the defendant railway company unless such recovery could be predicated on the doctrine of the last clear chance, the plaintiff's evidence examined, and held to show that his own negligence did not cease at any time prior to the collision of defendant's passenger train and plaintiff's automobile and consequently a judgment fixing exclusive responsibility for the accident upon the railway company on the doctrine of the last clear chance cannot be sustained.

William R. Smith, Owen J. Wood, Alfred A. Scott, Alfred G. Armstrong all of Topeka, and F. M. Harris, of Ottawa, for the appellant.

James W. Finley, James A. Allen and B. M. Dunham, all of Chanute, for the appellee.

OPINION

DAWSON, J.:

This action arose out of a railway-crossing accident in which defendant's passenger train collided with a Ford touring car which was stalled on the railway track, and in which collision plaintiff, its driver, received various severe injuries, one of which culminated in the amputation of his right leg.

The accident occurred about half a mile south of the town of Toronto, in Woodson county. South of Toronto station the railway track veers round a curve towards the southeast and then runs due south for a mile or two. A clear view of the crossing can be had by enginemen on a southbound train from a point about a quarter of a mile north of it. The public road over the railway runs east and west. The train which collided with plaintiff's car was a southbound passenger train running at thirty miles per hour. The collision happened about 10:30 o'clock in the forenoon. The day was misty, a recent heavy snow was melting, and the road and ground were very soft and muddy. Plaintiff had left Toronto to take some corn to his father's farm near the crossing and east of it. To get there, plaintiff drove across the track from the west, left the corn at the farm, and started back to town. The approach to the crossing was slippery, and when the front wheels of plaintiff's car had crossed the east rail, the car stalled; the rear wheels kept spinning in the mud; and on looking northward plaintiff saw the train about 400 feet away. He then made another effort to get the car across the track, but killed his engine, and the collision with its consequences happened.

Plaintiff's petition charged defendant with negligent failure to build and maintain the statutory sort of crossing--twenty-four feet wide, and level for thirty feet on each side of the center of the track, with approaching grades not exceeding six per cent, except where such specifications are excused by the county commissioners. (R. S. 66-227.) Other negligence charged against defendant was its failure to sound a whistle or give any warning of the approaching train, and--

"Failure to stop said train when his helpless and perilous situation was discovered by them [defendant's enginemen]."

Defendant's answer denied all the tortious acts alleged against it, and pleaded that plaintiff's injuries were caused wholly by his own negligence and not by any negligent act or omission of defendant or its employees.

The cause was tried before a jury. When the evidence was concluded, the trial court instructed the jury that plaintiff's contributory negligence was established by his own testimony, and that his right of recovery, if any, lay solely in the application of the doctrine of the last clear chance. The instruction touching plaintiff's negligence reads:

"4. Now in view of the testimony of the plaintiff himself that he knew all there was to know about this crossing, that he had a full view of the track for more than a quarter of a mile in the direction from which the train was coming and that after reaching the track and encountering difficulty in crossing because of things he knew beforehand existed he had ample time to see the approaching train and alight from the automobile or a chance to back same off the track and by either method avoid injury to himself if he had only looked, after getting upon the track, to see if a train was coming, and that he did not look until too late, you are instructed that plaintiff was, as a matter of law, guilty of negligence on his part in not looking and seeing said train and that because thereof the complaint of plaintiff as to the character of the crossing and alleged failure of defendant to sound the whistle or give warning of the oncoming train cannot avail plaintiff as causes of action against defendant, and therefore the court will not instruct you further as to the law concerning the construction or maintenance of crossings, nor concerning the duty of defendant to sound the whistle or give other warnings of the approach of the train."

The jury returned a general verdict for plaintiff and answered two lists of special questions submitted by the parties.

QUESTIONS SUBMITTED BY THE DEFENDANT.

"Q. 1. State the distance the train in question could have been seen approaching the crossing by a person looking for it from the roadway fifty feet east of the track. A. 1/4 mile. . . .

"Q. 3. Was the plaintiff thoroughly familiar with the crossing? A. Yes. . . .

"Q. 6. How many feet was the engine from the crossing when the fireman first discovered the plaintiff on the right of way? A. 1,600 feet.

"Q. 7. How many feet was the engine from the crossing when the fireman first discovered that the plaintiff would come to a place of danger? A. 1,600 feet.

"Q. 8. How many feet were required in which to stop this train on the track at the point in question going at a speed of 30 miles an hour? A. 600 feet.

"Q. 9. If you find for the plaintiff, then state in what respect the defendant was negligent at the time and place in question. A. They should of slowed down and had the train under control.

"Q. 10. After the fireman first discovered that the plaintiff was in or would come to a place of danger, what could he have done to avoid a collision? A. By notifying the engineer to slow down. . . .

"Q. 13. Did the automobile go upon the track, or did it strike the side of the pilot on the engine? A. Front wheels over east rail.

SPECIAL QUESTIONS REQUESTED BY PLAINTIFF.

"Q. 1. Did the plaintiff, M. F. Jamison, become stalled on the railroad track? A. Yes.

"Q. 2. Was the train in sight when the plaintiff, M. F. Jamison, drove on the track? A. No.

"Q. 3. Did the engineer and fireman see the stalled automobile, or could have seen it in the exercise of ordinary care, in time to have stopped the train and avoided injury to plaintiff? A. Yes."

Defendant's motions for a new trial, to set aside certain findings, and for judgment non abstante were overruled, and judgment was entered for plaintiff.

The critical question in this appeal turns upon the propriety of submitting the cause to the jury on the doctrine of the last clear chance. This doctrine can be invoked in negligence cases only where the party relying upon it has by his own prior negligence gotten himself into a predicament from which his subsequent diligence will not avail to extricate him without injury or damage through the act or delict of another party, but where such other party has a fair opportunity--a last clear chance--to avert or minimize the accident, injury or damage, by the exercise of reasonable diligence after the negligence of the first party has ceased. (Dyerson v. Railroad Co., 74 Kan. 528, 87 P. 680, 7 L. R. A., n. s., 132 and note; Juznik v. Railway Co., 109 Kan. 359, 364, 365, 199 P. 90; Williams v. St. Louis-San Francisco Rly. Co., ante, p. 256, and citations.)

Just when did the plaintiff's negligence cease to be effective, so as to create a sufficient margin of time thereafter and prior to the accident in which the defendant had a fair opportunity, a last clear chance, to avert or minimize the collision and its consequences? The trial court instructed the jury that plaintiff was negligent. That instruction was the law of this case as far as it went, for neither party objected to it. Other instructions proceeded on the theory that after plaintiff's negligence ceased there still was or might have been an interval of time in which the last-clear-chance rule might be applied. But defendant contends...