Kindig v. Atchison, T. & S.F. Ry. Co.

• Decision Date: 03 July 1931
• Docket Number: 29988.
• Citation: 1 P.2d 75,133 Kan. 459
• Parties: KINDIG v. ATCHISON, T. & S. F. RY. CO.
• Court: Kansas Supreme Court

1 P.2d 75

133 Kan. 459

KINDIG v. ATCHISON, T. & S. F. RY. CO.

No. 29988.

Supreme Court of Kansas

July 3, 1931

Syllabus by the Court.

Whether automobilist was contributorily negligent in driving on railroad crossing relying on absence of flagman and failure of automatic signal to sound held for jury.

In an action for damages in a collision of an automobile and train at a busy intersection in a city, held, under the facts stated in the opinion, that the question of plaintiff's contributory negligence is one to be submitted to the jury.

Instruction authorizing verdict on evidence produced by plaintiff is erroneous, where there is controverted testimony on material point.

Where there is controverted testimony on a material point, an instruction which authorizes the jury to return a verdict on the evidence produced by plaintiff is erroneous.

Any instruction on relative weight to be given to negative and affirmative evidence should follow rules previously announced by Supreme Court.

An instruction on the relative weight to be given to negative and affirmative evidence, if given at all, should follow the rules with respect thereto previously announced by this court, and care should be used that it is not misleading.

Instructions should make it clear that plaintiff cannot recover unless defendant was negligent in some of particulars alleged in petition, to plaintiff's damage.

In an action for damages predicated on defendant's negligence it should be made clear to the jury by the court's instructions that plaintiff cannot recover unless defendant was negligent in some of the particulars alleged in the petition, and that such negligence resulted in plaintiff's damage.

Appeal from District Court, Allen County; Frank R. Forrest, Judge.

Action by E. E. Kindig against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.

Reversed with directions.

Wm. R Smith, Alfred A. Scott, and C. J. Putt, all of Topeka, for appellant.

F. J Oyler and G. R. Gard, both of Iola, for appellee.

HARVEY J.

This is an action for damages to an automobile and for personal injuries alleged to have been sustained by plaintiff in a collision with the defendant's train, and to have resulted from defendant's negligence. The jury answered special questions and returned a verdict for plaintiff. Defendant has appealed.

Defendant's tracks and right of way extend north and south through the city of Iola. They are intersected by West street, a paved east and west street which is much used, being the principal thoroughfare of the city and a part of State Highway No. 54 of the state highway system. Defendant's passenger depot, its freight depot, and principal switch tracks are south of West street, but it has switch tracks north of West street which serve the stockyards and several industries. It has two tracks crossing West street --its main line track and a switch track. It keeps a flagman at this crossing from 9 o'clock in the morning until 5 o'clock in the afternoon, and there was evidence that at later times in the day, when switching was being done across this street, there was usually or frequently a flagman or trainman there to direct traffic. Defendant maintained an electric crossing bell on a post on the east side of the crossing. The casualty occurred about 8 o'clock on the evening of November 2, 1929. Defendant's freight train had work to do at Iola that evening. The train was cut in two south of West street. The engine proceeded north to the stockyards with three cars and picked up twelve cars on the stock track, and was backing the string of fifteen box cars south on the main line track across West street. Plaintiff lived at Iola and was familiar with this crossing. He frequently crossed defendant's tracks on West street, both in the daytime and in the evening. He knew defendant kept a flagman at this crossing in the daytime, and usually or frequently in the evening when switching across this street was in progress. He knew of the electric crossing bell and had been at the crossing when it was ringing and at other times when it was not. On the evening in question he drove his Ford sedan east on West street, intending to cross defendant's tracks. There was an electric street light on the east side and another on the west side of the tracks at this crossing. It was after dark; there was no moon, though the stars were shining. The lights on his car were burning, his car windows were open, the electric signal bell was not ringing, and there was no flagman or trackman at the crossing. Because of a rough place in the pavement he slowed down a short distance before reaching the track and continued to drive slowly. He testified he looked both ways and could see no train, and listened and could hear none; that just about the time he started to drive upon the track he saw the train. The front wheels of his car had crossed the first rails of the track when he was struck by the freight train, and his car, with plaintiff in it, was pushed south perhaps 75 feet before defendant's train was stopped. His car was damaged beyond repair, and he was injured. No point is made on this appeal about the amount of damages if plaintiff is entitled to recover. An ordinance of the city required that when trains were moved across the street, not preceded by an engine, the speed should not exceed five miles per hour, and a brakeman should be stationed on the end of the train or car next to the street to warn passengers on the street of the approach of the train, and to give signals to the engineer of danger of accident, and to stop the train when necessary to prevent an accident. Another ordinance required defendant to construct and maintain a sufficient wigwag signal of modern type, or keep a watchman at street crossings extraordinarily dangerous on account of the nature thereof and the amount of traffic.

Answering special questions, the jury found that plaintiff was familiar with the crossing; that he had proper headlights on his car, and that they were lighted; that defendant maintained a bell ringing signal at this intersection, but that it was not working at the time of the casualty; that there were no conditions, surroundings, or circumstances on this particular night at the crossing that would require plaintiff to bring his automobile to a dead stop before driving on the crossing; that defendant did not have any lights or other warning signals on the rear of the box car approaching the crossing, and did not sound the engine whistle while backing the train over the crossing; that the engine bell was ringing; that the speed of defendant's train was ten miles per hour and that of plaintiff's car four miles per hour; that plaintiff had complete control of his car; that there were electric street lights burning on the east and west sides of the railroad crossing; and that defendant's negligence consisted of improper signals and too much speed.

It is of course, the well-settled law in this state that a railroad track is of itself a sign of danger, that one crossing it at an intersection must realize that he must stop for the train, that the train cannot stop for him, and that due care on his part requires that he look and listen for approaching trains, and, if his view is obstructed and it is...