Johnson v. Killion

• Decision Date: 05 May 1956
• Docket Number: No. 40061,40061
• Citation: 297 P.2d 177,179 Kan. 571
• Parties: Fred B. JOHNSON, Administrator of the Estate of Walter E. Keith, Deceased, Appellee, v. Lyle KILLION, Doing Business as Killion Service Stations and Employers Mutual Casualty Company, Appellants.
• Court: Kansas Supreme Court

Page 177

297 P.2d 177

179 Kan. 571

Fred B. JOHNSON, Administrator of the Estate of Walter E Keith, Deceased, Appellee, v. Lyle KILLION, Doing Business as Killion Service Stations and Employers Mutual Casualty Company, Appellants.

No. 40061.

Supreme Court of Kansas.

May 5, 1956.

Syllabus by the Court.

The record in an action by an administrator to recover damages for wrongful death, resulting from a collision between a motor fuel transport truck and a train, on which the deceased was an engineer, at a railroad crossing, examined and held, that under the existing facts, conditions and circumstances the trial court did not err in sustaining a motion to strike certain subparagraphs of a paragraph, set forth in the opinion, from defendants' answers.

Robert N. Partridge, Wichita, argued the cause, and George B. Powers, Samuel E. Bartlett, Carl T. Smith, John F. Eberhardt Stuart R. Carter, Robert C. Foulston, Malcolm Miller, and Robert M. Siefkin, Wichita, were with him on the briefs, for appellants.

Mark L. Bennett, Topeka, argued the cause, and John E. DuMars and Clayton M. Davis, Topeka, John E. Wheeler, Marion, and W. F. Lilleston, George C. Spradling, Henry V. Gott, George Stallwitz, and Ralph M. Hope, Wichita, were with him on the briefs, for appellee.

PARKER, Justice.

This, the second appeal from rulings on the pleadings, is an action to recover damages for wrongful death resulting from a collision between a motor fuel transport truck and a train at a railroad crossing. Defendants appeal from an order sustaining a motion to strike certain portions of their separate answers.

A review of the allegations of the amended petition is neither necessary nor required. It suffices to say such allegations along with a factual statement sufficient to permit a proper understanding of what the case is about, are set forth at length in the opinion of Johnson v. Killion, 178 Kan. 154, 283 P.2d 433, which, by reference, is made a part of this opinion.

On a date, not disclosed by the record which we therefore assume was after our decision on the first appeal, defendants filed separate answers, identical in all respects except for certain allegations in the answer of defendant Employers Mutual Casualty Company, not here involved, respecting insurance coverage.

Summarizing, and without reference to allegations last above mentioned, it may be stated these answers deny generally the allegations of the petition, except formal allegations of residence and agency and the fact the accident had happened at the time and place in question; charge that the crossing in question was a dangerous crossing because of the speed of the trains crossing it and the peculiarities of its construction; and then, in addition to asserting that the collision was the result of an unavoidable, accident, contain the following allegations, to be found in the fifth paragraph of defendant Killion's answer and in the seventh paragraph of the defendant Employers Mutual Casualty Company's answer, which read:

'Defendant expressly denied that his driver was guilty of the negligence set forth in plaintiff's amended petition or of any negligence which was a proximate cause of the collision. That the said Walter E. Keith was guilty of the following acts of negligence which are binding on the plaintiff herein:

'a. In operating the engine of his train at a high and dangerous rate of speed, to-wit: approximately ninety to one hundred miles per hour.

'b. In operating his engine at such a speed when he knew or in the exercise of reasonable care should have known that it could not be stopped within his range of vision of the railroad crossing.

'c. In failing to observe defendant's vehicle attempting to cross the track.

'd. In failing to slow his train when he had the time and opportunity to do so and thereby avoid the collision.

'e. In operating his train at a speed in excess of sixty miles per hour as provided by the Interstate Commerce Commission regulations.

'f. In operating his train at a high and dangerous rate of speed across an intersection which he knew or should have known was not adequately protected by gates or electric warning devices.

'g. In failing to sound his whistle at a sufficient distance from the crossing so as to constitute a warning to vehicles attempting to cross the tracks.

That any one or more of the above acts of negligence were a proximate cause of the death of Walter E. Keith and bar the recovery of the plaintiff herein.'

After the defendants had answered in manner and form, as above described, plaintiff attacked both answers by a motion to strike all of subparagraph (b) and the portion of subparagraph (f), heretofore quoted and underlined for purposes of...