Jones v. The Atchison

• Decision Date: 07 December 1929
• Docket Number: 28,940
• Citation: 282 P. 593,129 Kan. 314
• Court: Kansas Supreme Court
• Parties: C. A. JONES, Appellant, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellee

282 P. 593

129 Kan. 314

C. A. JONES, Appellant, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellee

No. 28,940

Supreme Court of Kansas

December 7, 1929

Decided July, 1929.

Appeal from Crawford district court, division No. 1; LELAND M RESLER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

RAILROADS -- Accident at Crossing -- Duty of Driver When View Obstructed. The petition considered in an action by the driver of an autotruck against a railway company for damages for demolition of the truck resulting from plaintiff's driving it, in darkness, fog, and engine smoke, against the side of a freight train which had been standing on the highway crossing for forty-five minutes, and held, the petition disclosed that defendant was not negligent with respect to plaintiff, and the accident was the result of plaintiff's own negligence.

W. H. Ryan and E. W. English, both of Girard, for the appellant.

William R. Smith, Owen J. Wood, Alfred A. Scott and Alfred G. Armstrong, all of Topeka, for the appellee.

OPINION

BURCH, J.:

The action was one for damages for demolition of plaintiff's autotruck when he drove it against the side of defendant's freight train standing on a highway crossing in the town of Trent, Neosho county. An objection to the introduction of evidence on the ground the petition failed to state a cause of action was sustained. Plaintiff appeals.

The petition alleged that defendant unlawfully obstructed the crossing with its freight train for forty-five minutes. There is a statute making it a misdemeanor for a railway company to allow a train to stand on a highway crossing such as the one in question for longer than ten minutes, without leaving an opening in the traveled portion of the crossing. The statute is one to facilitate the movement of traffic on the highway and to prevent blockade causing congestion and delay. The statute was not one to prevent autotruck drivers from running against the sides of freight trains. (Shelden v. Wichita Railroad and Light Co., 125 Kan. 476, 264 P. 732, and cases cited in the opinion.) It made no difference to plaintiff how long the train had been there. He did not arrive and then wait because the crossing was obstructed, or resort to expedients to avoid delay in getting to the other side of the track, or do or suffer anything because of length of time the train had stood on the crossing. To him the situation was the same as if the train had been there only five minutes, and negligence with respect to him may not be predicated on violation of the statute.

The petition alleged that when the accident occurred it was long after sunset, it was dark, there was fog, there was dense smoke from the engine of the train, and the railway company did not provide signal lights or other warning that the highway was obstructed by the train. There was no allegation that there was anything peculiarly dangerous about the crossing which made it reasonably necessary for the railway company to have gates, or lights, or a gong, or a watchman at the crossing, to warn highway users against attempting to cross. It was just dark and foggy and smoky. There is no statute which requires a railway company to warn travelers there is a freight train across the highway when those conditions exist, and a railway company rests under no common-law duty to take such precautions for the benefit of drivers of auto vehicles.

Under ordinary circumstances a freight train standing across a highway on a...