Knight v. The Atchison

• Decision Date: 06 May 1922
• Docket Number: 23,754
• Citation: 206 P. 893,111 Kan. 308
• Court: Kansas Supreme Court
• Parties: MARY M. KNIGHT, Appellant, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellee

206 P. 893

111 Kan. 308

MARY M. KNIGHT, Appellant, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellee

No. 23,754

Supreme Court of Kansas

May 6, 1922

Decided January, 1922

Appeal from Neosho district court; SHELBY C. BROWN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

NEGLIGENCE--Automobile--Railroad Crossing--Contributory Negligence. A mature person who attempts to cross a railroad track without taking any precautions for his own safety, while riding in an automobile with another who is driving, cannot recover damages from the railroad company 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. (Kirby v. Railway Co., 106 Kan. 163, 186 P. 744 followed.)

H. P. Farrelly, and T. R. Evans, both of Chanute, for the appellant.

William R. Smith, Owen J. Wood, Alfred A. Scott, all of Topeka, and F. M. Harris, of Ottawa, for the appellee.

OPINION

MARSHALL, J.:

The plaintiff commenced this action to recover damages for injuries sustained by her in a collision between a moving freight car and an automobile in which she was riding. Verdict was returned in favor of the plaintiff in the sum of $ 3,500; but, upon motion of the defendant, the court set aside the verdict and rendered judgment in favor of the defendant. The plaintiff appeals.

The judgment must be reversed unless the plaintiff was guilty of negligence that contributed to her injury. The plaintiff was riding in an automobile driven by G. D. West, the owner of the car, and was going from the east side of Chanute to the west side, across the defendant's switch yards containing about fifteen railroad tracks. The defendant kept a flagman at the crossing of the street and the railroad tracks. The negligence alleged was that after the automobile had been stopped near the tracks to enable the plaintiff and the driver of the automobile to ascertain if there were danger, "the flagman . . . signaled said G. D. West to proceed across said tracks," and that "on or about the fourth or fifth track from the east side, without any warning, knowledge or notice thereof, a car approached them, unattached to any engine or train and with no attendant thereon, coming from the south, and by reason of other cars standing on the south side of said street could not be seen or observed until about the time it struck the automobile in which the plaintiff was riding."

Special questions were answered by the jury. Three of them show that there was nothing to prevent the plaintiff and the driver of the automobile from seeing the approaching freight car when they were fifty feet east of...