Kirby v. The Kansas City

• Decision Date: 10 January 1920
• Docket Number: 22,448
• Citation: 106 Kan. 163,186 P. 744
• Court: Kansas Supreme Court
• Parties: WILBUR H. KIRBY, Appellee, v. THE KANSAS CITY, KAW VALLEY & WESTERN RAILWAY COMPANY, Appellant

186 P. 744

106 Kan. 163

WILBUR H. KIRBY, Appellee, v. THE KANSAS CITY, KAW VALLEY & WESTERN RAILWAY COMPANY, Appellant

No. 22,448

Supreme Court of Kansas

January 10, 1920

Decided January, 1920.

Appeal from Wyandotte district court, division No. 1; EDWARD L FISHER, judge.

Judgment reversed and rendered.

SYLLABUS

SYLLABUS BY THE COURT.

RAILROAD CROSSING--Passenger in Automobile--Contributory Negligence. A mature person who attempts to cross an interurban railroad track without taking any precautions for his own safety, while riding in an automobile with another, who is driving, cannot recover damages for injuries sustained in a collision with a car on the track, when by looking he could have seen the approaching car in time to have warned the driver of the danger.

J. E. McFadden, and O. Q. Claflin, jr., both of Kansas City, for the appellant.

J. O. Emerson, and David J. Smith, both of Kansas City, for the appellee.

OPINION

MARSHALL, J.:

The defendant appeals from a judgment against it for injuries sustained by the plaintiff in an accident at a crossing of a public highway and the defendant's railroad. The evidence showed that the defendant operated an interurban railroad from Kansas City to Lawrence through a station known as Grinter Heights, where a public road crossed the railroad almost at right angles; that a macadam road ran along the south side of the railroad; that A. H. Hart with an automobile was standing east of the road which crossed the railroad, on the north side of the macadam road but south of the railroad track; that the plaintiff went to Hart, and after a little conversation got into the automobile with Hart and started to ride with him to Hart's house; that in doing so it was necessary to cross the railroad track; that Hart drove the automobile; that they started across the track without looking for an approaching car; that after they got on the track, they saw a car coming from the west, about one hundred feet away; that the plaintiff jumped out of the automobile and was injured; that Hart remained in the automobile and went across the track and was not injured; and that the automobile was not struck. There was evidence which tended to show that the automobile stopped about four feet south of the track, then started across, and stopped again on the track, and then went across, and that the automobile jumped in crossing the track. The evidence also tended to show that there was a grade in the road from the south up to the track, and that the plank on the side of the track was about four inches thick and about four inches above the ground. The plaintiff at that time was twenty-six or twenty-seven years old.

The jury made special findings of fact as follows:

"1. When plaintiff got into the automobile with Mr. Hart, was it with intention to ride to Mr. Hart's home for the purpose of visiting with him during a part of the day? A. Yes.

"2. Was the plaintiff familiar with the location of defendant's tracks at the time and place in question when he got into the automobile to go to Hart's home? A. Yes.

"3. Did plaintiff know that in going to Mr. Hart's home in the automobile they would have to cross the track of the defendant? A. Yes.

"4. Did plaintiff know that cars, both passenger and express, were operated on and along the tracks of defendant at different intervals during the day, and over the crossing in question? A. Yes.

"5. From the time the automobile in which plaintiff was riding started until it reached a point where the front wheels were upon defendant's track, did he look to see if there was a car approaching the crossing from the west? A. No.

"6. If plaintiff or the driver of the automobile had looked toward the west at any time after the automobile was started and before it reached the railroad track, could they or either of them have seen the approaching car in time to have stopped before going upon the track? A. Yes.

"7. When the automobile got upon defendant's track what distance was the approaching car from the crossing? A. On or about 100 feet.

"8. Did Mr. Hart tell the plaintiff to remain in the automobile when he saw that plaintiff was preparing to get out? A. Yes.

"9. If the plaintiff had remained in his seat in the automobile, would he have been injured? A. No.

"10. Was plaintiff struck by defendant's car at the time in question? A. Yes.

"11 If you answer question No. 10 'Yes,' then state on what witness' testimony you base such answer. A. Mr. Kirby, H. C.

"12. After the motorman saw the automobile start to cross the track in front of his car from the place where he testified it had stopped, immediately south of the track, did he do all he could properly do to stop his car before reaching the crossing? A. Yes.

"14. Did the automobile in which plaintiff was riding pass over the railroad track without being struck by the car? A. Yes."

For the purpose of discussion, it is assumed that the defendant was negligent in some one or more of the particulars alleged. The defendant argues that the court erred in overruling its demurrer to the plaintiff's evidence, in refusing to give defendant's peremptory instruction for a verdict in favor of the defendant, in overruling the motion of the defendant for judgment on the special findings and to set aside the general verdict, in entering a judgment for the plaintiff, and argues that the judgment is contrary to law and without evidence to support it. The decision turns on the contributory negligence of the plaintiff.

Was the plaintiff guilty of contributory negligence? He and the driver of the automobile started across the railroad track without looking to see if a car were approaching. The driver of the automobile was clearly guilty of negligence. If he had sustained any injury, he could not recover therefor. (Jacobs v. Railway Co., 97 Kan. 247, 154 P. 1023; Wehe v. Railway Co., 97 Kan. 794, 156 P. 742.)

In Corley v. Railway Co., 90 Kan. 70, 133 P. 555, this court said:

"One who, while riding in an automobile as the guest of the driver, is injured by a collision at a railroad crossing, caused by the negligence of the company, is not precluded from recovering damages therefor by...