Limbaugh v. Schaff

• Decision Date: 07 July 1923
• Docket Number: 24,285
• Citation: 217 P. 279,114 Kan. 24
• Parties: GEORGE O. LIMBAUGH, Appellee, v. CHARLES E. SCHAFF, as Receiver, etc., Appellant
• Court: Kansas Supreme Court

217 P. 279

114 Kan. 24

GEORGE O. LIMBAUGH, Appellee, v. CHARLES E. SCHAFF, as Receiver, etc., Appellant

No. 24,285

Supreme Court of Kansas

July 7, 1923

Decided July, 1923.

Appeal from Bourbon district court; EDWARD C. GATES, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

NEGLIGENCE--Collision--Automobile and Train--Findings--Driver of Automobile Guilty of Contributory Negligence. Findings of fact considered in an action for damages for injury sustained in a collision between an automobile and a passenger train at a street crossing, and held, the automobile driver was guilty of contributory negligence.

W. W Brown, of Parsons, and Douglas Hudson, of Fort Scott, for the appellant.

A. M. Keene, and Harry W. Fisher, both of Fort Scott, for the appellee.

Burch J. Johnston, C. J., Hopkins, J., dissenting.

OPINION

BURCH, J.:

The action was one for damages for injury to person and property of an automobile driver, sustained in a collision with one of defendant's trains at a street crossing. Plaintiff recovered, and defendant appeals.

The street, known as Shute street, runs north and south in the city of Fort Scott. The railroad runs cast and west, curving slightly toward the south. The main portion of the city is toward the south. At a point 12 feet south of the crossing the street level is 1.6 feet below the railroad track. South of that the street is level for a distance of 250 feet. Mill street is 946 feet east of Shute street, and beyond that trains from the east come into view through a cut in a hill. Looking eastward up the track, the skyline is 14 or 15 feet above the tracks. On the cast side of the street, 64 feet south of the crossing, was a small tree, which at the time of the accident was without foliage. Plaintiff testified the tree did not obstruct his vision, and there was nothing else within 300 feet of the crossing to obscure view of an approaching train.

The accident occurred on the evening of December 20, 1920. The precise time was not definitely established. Plaintiff testified it occurred at five minutes before five o'clock. Then he testified that was what some one said. Afterwards he testified it was five minutes before five. The sun set at 5:02. The train was due to leave Fort Scott at 5:12. Shute street is about a mile from the station, where the train arrived at 5:17. The jury found the accident occurred at 5:05. The headlight of the engine had not been turned on, and the findings placed defendant in the attitude of violating the interstate commerce commission regulation requiring a headlight between sunset and sunrise.

A city ordinance limited speed of the train to ten miles per hour. The engineer testified he was running at a rate of 12 to 15 miles per hour. The jury accepted this testimony as true, and found defendant negligent on account of high speed of the train.

The engineer testified he gave the station signal half a mile from the crossing, gave the crossing signal 80 rods from the crossing, and the bell was ringing when the train approached the crossing. The bell was operated by a bell-ringing device, and had been ringing for some time before the accident. Plaintiff testified he did not hear any bell, and the jury found the bell was not ringing.

The automobile was a Ford sedan. In the seat on plaintiff's right sat J. W. Calvin. Plaintiff testified the road was pretty rough, there were many bumps he could not miss. He traveled at a rate of 15 miles per hour until he was 50 or 60 feet from the tracks. He then slowed down and coasted at a rate of 5 miles per hour, not faster, and could have stopped the automobile "right now," "within 3 or 4 feet." He testified he was familiar with the crossing, and always took time to look to the cast and to the west for trains. In this instance he looked both ways. When he was 20 or 30 feet from the crossing, or further back, he looked. After looking toward the west, he was looking toward the cast all the time, and he saw Calvin looking. When the automobile was on the crossing, Calvin shouted, "Look out!" Plaintiff then saw the engine 20 feet away. He shifted to low gear and gave the engine gas, but was struck instantly. Calvin was killed, the car was demolished, and plaintiff was injured.

Plaintiff testified he looked toward the east so much because he could not see. It was so dark he could see just a few feet ahead of his car, 6 or 8 feet. Later he said he could see 6 or 8 or 10 feet ahead of his car, and he finally said he supposed he might have seen the outline of a car 20 feet away. He had not turned on his own headlights--his batteries were low--and he just knew when he was approaching the railroad tracks. Just as Calvin spoke, he got a glimpse of the engine. Therefore, out of the blackness which covered plaintiff, impossible for eyesight to penetrate but a few feet--he said he had good eyesight--the engine suddenly, silently, swiftly loomed.

The official weather observer at Fort Scott testified he made observations at 6 o'clock. The sky was cloudy, and it commenced to rain at 8 o'clock. There was nothing peculiar about the day, just a cloudy condition before the rain. Other days in December were very much the same.

Some witnesses for plaintiff testified it was a dark evening. His wife said it was a real dark and stormy evening, and his brother said it was darker than usual. Lights had been turned on in shops and stores and houses as early as 4:30, which was not unusual. The county attorney said that about 5 o'clock it was too dark to read a law book in his office without artificial light. Calvin had a brother living at Richards, Mo. He was in a sawmill at the edge of timber on the bank of a stream, doing some fittings on engine bearings. It occurred to him to look at his watch. He could not see the figures on the dial. Going to the firebox and opening the door, he saw it was between four and five minutes of five. Plaintiff, however, produced no witness other than himself who gave any testimony whatever regarding the distance large objects could be seen out of doors.

Like plaintiff, the engineer was running without a headlight. With responsibility resting on him for safety of the train crew and passengers, the defendant's property, and the lives and property of travelers on the highways, the engineer had felt no need to turn on his headlight in the operation of his train, and he did not do so even after the accident occurred, until after he arrived at Fort Scott station.

There were seven cars in the train. It was stopped with five cars over the crossing. The engineer went back to the crossing without a lantern, and assisted the other trainmen in doing what was necessary. The train auditor talked to plaintiff, and made notes of the accident in his notebook. Calvin's body was put into the baggage car, and the train proceeded to Fort Scott station, all by daylight.

In the express car the express messenger was getting ready the mail and express for Fort Scott without artificial light. He did not need it. The porters had not lighted the coaches, the brakemen carried no lanterns, and there was no artificial light on the train. Alfred Archer and wife, of Clinton, Mo., were passengers, riding in the chair car. Just before the collision Archer handed his wife a newspaper...