Johnson v. Union Pac. R. Co.

Decision Date11 December 1943
Docket Number35872.
PartiesJOHNSON et al. v. UNION PAC. R. CO.
CourtKansas Supreme Court

Rehearing Denied Jan. 27, 1944.

Syllabus by the Court.

In action for death of motorist and destruction of automobile in nighttime collision at grade crossing over a city street evidence was insufficient to take to jury railroad's alleged negligence with respect to the speed of its train and failure to sound bell or whistle.

That railroad had permitted freight cars to be placed on a switch track so near a crossing over a city street as to cut off motorist's view of approaching trains did not render railroad liable for motorist's death and destruction of automobile in nighttime collision at the crossing.

Generally whether ordinary care requires a railroad to keep a flagman at a crossing that is especially dangerous is for a jury, and omission to station a flagman at a dangerous crossing may be considered as evidence of negligence.

Before a jury will be warranted in saying, in absence of statute that a railroad should keep a flagman or gates at a grade crossing, it must first be shown that such crossing is more than ordinarily hazardous or that the view of the track is obstructed or that the crossing is a much traveled one and the noise of approaching trains is rendered indistinct and ordinary signals difficult to be heard by reason of confusion incident to business.

Generally a railroad must take adequate measures for the safety of the traveling public at a railroad crossing although no statute or official order of some governmental agency has required such measures.

In action for death of motorist and destruction of automobile in nighttime collision at grade crossing over a city street, instruction on railroad's failure to maintain a flagman at the crossing in the nighttime was proper.

Where there was a considerable industrial district near a railway and street crossing and tall buildings deflected the sound of bell or whistle of approaching trains and there were noises of flour mills and elevators and switching of freight cars night and day and railroad maintained a flagman from 7 o'clock a. m. until 11 o'clock p. m., question whether it was negligence on part of railroad to have no flagman to warn of approaching trains in the later hours of the night was for jury.

One about to cross a railroad track on a public road must assure himself that it is safe to do so, and, if his own evidence shows that he did not take those precautions which common prudence and the law require, his contributory negligence bars his recovery for injuries by a train as a matter of law although the railroad may have been negligent also.

The diligence of one about to cross a railroad track must be commensurate with the hazard.

A traveler upon a highway about to cross a railroad track must make a vigilant use of his senses in order to ascertain if there is a present danger in crossing.

Failure by a person about to cross a railroad track to listen or to look, when by taking this precaution the injury might have been avoided, is negligence that will bar a recovery, notwithstanding railroad's negligence in failing to give signals contributed to the injury.

Whether negligence was shown in a particular case is ordinarily for jury, but, when the facts are undisputed and only one conclusion can be drawn therefrom, negligence becomes a question of law for the court.

It is not enough for a traveler to look where an approaching train cannot be seen or to listen when it cannot be heard, nor will it suffice that one has looked some distance away from a crossing when a view on a closer approach would have revealed the danger; but where, by reason of obstructions or noises, an approaching traveler cannot see or hear a coming train, it may be necessary for him to stop.

Railroad's negligence in failing to provide a flagman at a grade crossing over a city street did not relieve motorist from being contributively negligent where he completely failed to exercise due care for his own safety, barring as a matter of law recovery against railroad for death of motorist and destruction of automobile in nighttime collision at the crossing.

1. In an action for damages for death and for destruction of an automobile at a railway crossing over a city street, plaintiffs' allegations of defendant's negligence in respect to the speed of its train, failure to sound bell or whistle, and in permitting freight cars to stand so close to the crossing as to cut off the view of an approaching train, considered, and held that these allegations of negligence were not sustained.

2. Where there is a considerable industrial district in the vicinity of a railway and street crossing, where tall buildings tended to deflect the sound of bell or whistle of an approaching train, and there were noises of flouring mills and elevators and switching of freight cars by night as well as day, and where defendant maintained a flagman from 7 o'clock a. m. until 11 o'clock p. m. the question whether it was negligence on the part of defendant to have no flagman on duty to warn motorists of approaching trains in the later hours of the night was one for the jury's consideration, and not one to be ruled on as a matter of law--following Grand Trunk R. Co. v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485.

3. Rule followed that a motorist who is about to cross a railway must exercise due care for his own safety; and where he completely fails in that duty to himself, the fact that the railway company may have been negligent in failing to provide a flagman or to maintain some efficient device to warn against an approaching train will not relieve him from being guilty of contributory negligence, and will bar a recovery of damages against the railway company as a matter of law.

Appeal from District Court, Saline County; Roy A. Smith, Judge.

Action by Albert Johnson and another against Union Pacific Railroad Company for death of plaintiff's son Cleo Johnson and for damages to an automobile in a grade crossing collision. From an adverse judgment, defendant appeals.

Reversed with instructions.

HARVEY, SMITH, and PARKER, JJ., dissenting in part.

O. B. Eidson, of Topeka (Ralph Knittle, of Salina, and T. M. Lillard, P. H. Lewis, and James W. Porter, all of Topeka, on the brief), for appellant.

Alex H. Miller and C. L. Clark, both of Salina, for appellees.

DAWSON Chief Justice.

This was an action for damages for the death of plaintiffs' son, Cleo Johnson, and for the damages to their automobile, in a nighttime collision with defendant's fast passenger train at a street crossing in Salina.

Ninth street is a much traveled street which runs north and south through the city. The Union Pacific railroad crosses that street diagonally from northeast to southwest. Defendant's depot is situated about four blocks west of the crossing. Five parallel tracks on defendant's right of way cross Ninth street. About forty yards east of the crossing is the Robinson flour mill, a seven-story building. The Robinson mill is served by three of defendant's switch tracks. Two of these branch off from the southernmost of the five parallel tracks immediately west of the crossing, one of them serving the north side of the Robinson mill, and the other its south side. The third switch track does not cross Ninth street; its west end is a short distance east of that street; it also serves the south side of the Robinson mill.

A few feet west of Ninth street and a short distance south of the five parallel tracks is a small shelter cabin for crossing watchmen who are kept on duty by defendant in two shifts, one from 7:00 o'clock a.m. until 3 o'clock p.m., and the other from 3:00 o'clock p.m. until 11 o'clock p.m. No watchman is kept on duty in the nighttime from 11 o'clock p.m. until 7 o'clock a.m.

At various distances to the south of defendant's series of main line and switch tracks just described are several other series of tracks, one of which appears to be Union Pacific property; but it and the other series of tracks which lie further away need no consideration in our present study of the locus in quo.

About 20 yards east of Ninth street and about 125 yards south of the crossing is the Weber flour mill, a six-story structure. South of the Weber mill and close to the east side of Ninth street was a series of tall elevators. There may have been other business structures thereabout, but those mentioned will show that the vicinity of the crossing on the east side of Ninth street had the usual characteristics of an industrial district--flour mills and elevators running night and day, and switch engines and freight cars moving on the switch tracks at any time of night. The mills, elevators and the street crossing were so well lit up at night that the glare of the headlight of an approaching train was largely dissipated thereby. The height of the mills and the noise of their operation tended to deflect or overcome the whistle and sound of a bell from a train approaching from the east.

On the night of the accident, November 28, 1940, a fast passenger train from the east, due to arrive at the Salina depot at 1:10 a.m., and running 20 minutes behind time, crossed Ninth street at a speed of 40 to 50 miles per hour.

At that time, plaintiffs' 19-year-old son Cleo Johnson and two companions in plaintiffs' automobile came up Ninth street from the south, headed for their homes north of the city. The result was a collision in which plaintiffs' son who was driving the car and one companion were killed; the third youth was injured; and plaintiffs' automobile was wrecked.

Hence this action by the plaintiffs, for the death of their son, and damages to their automobile.

Plaintiffs' amended petition...

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