Kendrick v. Atchison, T. & S. F. R. Co.

• Decision Date: 25 January 1958
• Docket Number: No. 40691,40691
• Citation: 182 Kan. 249,320 P.2d 1061
• Parties: Donald F. KENDRICK, Appellant, v. The ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY, Appellee.
• Court: Kansas Supreme Court

Page 1061

320 P.2d 1061

182 Kan. 249

Donald F. KENDRICK, Appellant, v. The ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY, Appellee.

No. 40691.

Supreme Court of Kansas.

Jan. 25, 1958.

Rehearing Denied March 12, 1958.

Syllabus by the Court

1. The record examined in an appeal from an order sustaining a demurrer to the plaintiff's evidence in a railroad crossing case, and held: (1) The plaintiff's evidence was sufficient to establish a cause of action against the defendant Atchison, Topeka & Santa Fe Railroad Company; (2) The demurrer to the plaintiff's evidence should have been overruled.

2. Upon a demurrer to the evidence this court is called upon to review only the sufficiency of plaintiff's evidence and not to weigh the evidence for the purpose of rendering a decision on the merits of the action, and this same duty is incumbent upon the trial court. In testing the sufficiency of evidence as against a demurrer, the court shall consider all of plaintiff's evidence as true, shall consider that favorable to plaintiff, together with all reasonable inferences to be drawn therefrom, and disregard that unfavorable to plaintiff, and shall not weigh any part that is contradictory, nor weigh any difference between his direct and cross-examination, and give the evidence of plaintiff a liberal construction resolving all doubt against defendant and, if so considered, there is any evidence which supports or tends to support plaintiff's case on any theory, the demurrer shall be overruled.

3. It is negligence per se for a railroad company to fail to sound the whistle eighty rods from a public crossing as provided in G.S.1949, 66-2,120.

4. The purpose of statutes such as G.S.1949, 66-2,120 is to warn of approaching trains and not of trains already occupying the crossing.

5. Negligence per se usually consists of the violation of a specific requirement of law or ordinance.

6. The distinction between 'negligence' and 'negligence per se' is the means and method of ascertainment, in that the former must be found by jury from the evidence, while the latter results from violation of the specific requirement of law or ordinance; and the only fact for determination of the jury is the commission or omission of the specific act inhibited or required.

7. In this jurisdiction we follow the rule that while the breach of duty imposed by law or ordinance is negligence per se, liability in damages cannot be predicated on its violation unless the breach of the law or ordinance is the proximate cause of the injury or damages, or substantially contributes thereto.

8. The proximate cause of an injury is that cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act.

9. A driver who negligently drives in front of an approaching train at a crossing may be joined with the railroad company as a defendant for injuries received by passengers for their concurring negligence.

10. There can be more than one legal or proximate cause of an accident.

11. The mere fact that a driver may have been negligent and his negligence a proximate cause of the accident would in no wise excuse the concurrent negligence of the railroad if the breach of its duty was also a proximate cause of the accident.

12. Proximate cause is most always a question for the jury. It becomes a question of law only where the facts are agreed upon or are not in dispute.

13. The same rule of proximate cause is followed where the injury is the result of concurring negligence.

14. Although the negligence of a driver of an automobile may not be imputed to a passenger, the passenger has a duty to exercise reasonable care for his own safety and he will be barred of recovery because of his independent negligence if he fails to exercise such care by warning the driver of an imminent danger.

15. It will be presumed that a person exercises reasonable care for his safety. And in the absence of evidence or circumstances to the contrary, the presumption is that before venturing to cross a railroad track one will both look and listen before doing so. This implies that a passenger both looked and listened and warned the driver of an approaching train near the crossing.

16. To constitute a joint enterprise between a passenger and a driver of an automobile, there must be a common purpose for which they jointly use and occupy the motor vehicle so as to give each the equal privilege and right to control and manage its operation.

John C. Frank, Wichita, argued the cause, and Robert L. Morrison, Wichita, and George Templar, Earle N. Wright, Ted Templar, Arkansas City. were with him on the briefs, for appellant.

W. E. Treadway and Edwin M. Wheeler, Topeka, argued the cause, and Kirke W. Dale, Donald Hickman, Arkansas City, and C. J. Putt, J. B. Reeves, Topeka, were with them on the briefs, for appellee.

HALL, Justice.

This is an appeal from an order sustaining the demurrer to the plaintiff's evidence in a railroad crossing case.

The plaintiff Kendrick and others, Charles Manley, Tolliver Matthews and Milton McCollum were residents of Winfield, Kansas, employed at the Boeing Airplane Company in Wichita, Kansas. They had a car pool arrangement whereby the four of them alternated in driving their automobiles from Winfield to Wichita.

On the afternoon of December 15, 1955, they were en route to the plant in Wichita where their work commenced at 3:45 p. m.

On this particular day Charles Manley was driving his car and the plaintiff Kendrick, Tolliver Matthews and Milton McCollum were passengers. The plaintiff sat in the rear seat to the left immediately behind the driver Manley. Matthews sat to the right in the rear seat and McCollum to the right in the front seat.

Manley, the driver, followed their usual route from Winfield to Wichita by taking U. S. Highway 77 north from Winfield to the junction of Kansas Highway 15, thence west to Wichita on K-15.

The Atchison, Topeka & Santa Fe Railroad operates a line from Winfield northward to points east and west. From Akron, Kansas, a small town north of Winfield to the junction of US-77 and K-15, a distance of some 2 1/2 miles, highway 77 and the Santa Fe Railroad track are parallel.

Northbound US-77 connects with westbound K-15 by a wide, gradual curve approximately 1,760 feet in length. This curve merges into westbound K-15 approximately 490 feet east of a railroad crossing over K-15. The highway and crossing are substantially at right angles.

At approximately the point where the curve from US-77 joins K-15, approximately 400 feet east of the crossing, there are the usual 'hazard type warning signs'. There were additional crossarms signs on each side of the crossing.

Along the track, at a point approximately 1,320 feet south of the crossing, there was a whistle post for northbound trains approaching the crossing.

The accident occurred when a Santa Fe train proceeding in a northerly direction and the automobile driven by Charles Manley proceeding in a westerly direction on K-15 collided at the crossing. Manley was killed and the plaintiff suffered injuries for which this suit was brought.

The plaintiff Kendrick brought suit against the estate of the driver, Charles Manley, and the Santa Fe Railroad. The cases were consolidated for trial. At the close of the plaintiff's evidence both defendants demurred to the evidence. The demurrer of the defendant Santa Fe Railroad was sustained and the demurrer of the Manley estate was overruled.

In support of his petition the plaintiff gave his own testimony and the testimony of Matthews, one of the passengers in the car; Roy Snook, another employee at Boeing who commuted from Winfield and who was riding with his son Eugene Snook, Joe Hanna and others at a point about 500 feet on the curve behind the Manley car when the accident occurred; Eugene Snook and Joe Hanna; Lawrence O'Hara, who lived on a farm in Butler County and who at the time of the accident was at a stop sign on the north approach to K-15 about 150 feet east from the crossing; Lester Koch and Marvin LaFollette, Kansas State Highway Patrolmen who investigated the accident; James Desbein, assistant county engineer; and several other witnesses who testified as to plaintiff's injuries which are not material to the issues raised in this demurrer.

Desbein testified as to the physical aspects of the highway and the railroad track. He had measured the distance from the highway to the whistle post and found it to be 1,320 feet.

Plaintiff Kendrick testified that Manley was driving about 60 or 65 miles per hour as he proceeded northward on US-77; that as they proceeded he did not see or hear the Santa Fe train. He said:

'* * * I first noticed the Santa Fe train when I was in the circle of K-15 (the curve was also known as the circle) and when our car was in a northwesterly direction, * * *

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'* * * I traveled to work by car and had entered into a car pool with Charles Manley, Tolliver Matthews and Milton McCollum. * * * That way it saves expenses on all cars, to have to drive them back and forth every day. Boeing had to approve the car pool. Each of the boys took his car on alternate days.

'Charles Manley had a reputation as a very good driver. He was a very careful driver. He observed all the traffic signs. He drove within the speed limits of the State laws. When the other fellows drove their cars, none of the riders had control over the manner in which he drove, nor the route taken, nor the speed at which he drove.

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'* * * The window on my side was about five or six inches down when I first saw the train. The radio in the car was not on, and there was no noise in the car. When I first saw the train, it was somewhere around the whistle post. I do not know exactly where it was. I had to sort of look over my left shoulder to see the train. ...