Long v. Missouri Pacific Railroad Company

• Decision Date: 07 July 1923
• Docket Number: 24,376
• Citation: 216 P. 1079,114 Kan. 40
• Parties: AUSTIN LONG, Appellee, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellee, JAMES C. DAVIS, as Director-general, etc., Appellant
• Court: Kansas Supreme Court

216 P. 1079

114 Kan. 40

AUSTIN LONG, Appellee, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellee, JAMES C. DAVIS, as Director-general, etc., Appellant

No. 24,376

Supreme Court of Kansas

July 7, 1923

Decided July, 1923.

Appeal from Wyandotte district court, division No. 2; FRANK D HUTCHINGS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. COLLISION--Motor Truck and Railroad Train--Two Actions for Damages Pending--Defendant Not Prejudiced Thereby. The plaintiff commenced an action to recover for personal injuries sustained in a collision between a motor truck which he was driving and a passenger train of the defendant, and later commenced another action against the defendant on the same cause of action, but did not dismiss the first action. In the latter action, the defendant pleaded in its answer that the first action was still pending. Judgment was rendered in favor of the plaintiff in the latter action. Held, that, under section 581 of the code of civil procedure, the judgment will not be reversed nor the action in which it was rendered be dismissed, because no substantial right of the defendant has been prejudiced by the trial of the action last commenced.

2. SAME--Negligence--Contributory Negligence a Question of Fact for the Jury. The court cannot say as a matter of law that one driving a motor truck across a railroad track is guilty of such contributory negligence as will bar his recovery where he stops from six to twelve feet from the track and looks each way for approaching trains, does not see any, and then starts slowly across the track, but is struck by a train, and is injured. Under such circumstances, contributory negligence is a question for determination by the jury.

3. SAME--Purpose of Ordinances Regulating Speed of Railroad Trains Within a City. An ordinance regulating the speed of railroad trains within a city is for the government of railroads in their conduct toward persons crossing the railroad tracks whether such persons are inhabitants of the city or not.

4. SAME--Peremptory Instruction for Verdict--Properly Refused. It was not error to refuse to give a peremptory instruction to the jury to return a verdict for the defendant.

5. SAME--Instructions. There was no reversible error in the instructions given to the jury nor in refusing to give requested instructions.

W. P. Waggener, O. P. May, both of Atchison, and T. M. Van Cleave, of Kansas City, for the appellant.

C. D. Sharp, and C. W. Trickett, both of Kansas City, for the appellee.

OPINION

MARSHALL, J.:

James C. Davis, director-general, appeals from a judgment in favor of the plaintiff for damages sustained by the latter in a collision between a motor truck which he was driving and a passenger train on the Missouri Pacific Railroad in Kansas City, Kan. The railroad company's demurrer to the plaintiff's evidence was sustained, and there is no appeal therefrom by the plaintiff.

Special questions were answered by the jury as follows:

"Q. 1. Did the plaintiff, Austin Long, while in a position of safety, look to see whether any train was approaching upon the railroad track which he was about to cross? A. Yes.

"Q. 2. If you answer question No. 1 'Yes,' then state where the plaintiff was when he looked. A. About 12 feet east of the east rail.

"Q. 3. If you answer question No. 1 'Yes,' how far to the north could plaintiff have seen an approaching train from the place where he looked? A. About 450 feet.

"Q. 4. Did the plaintiff, while yet in a position of safety, and just before he attempted to cross the track of the defendant and after his view was unobstructed up and down said track for a considerable distance, or when the range of visibility was at the maximum, stop his automobile truck for the purpose of ascertaining whether it was safe to cross said track? A. No.

"Q. 5. State the distance a train could have been seen approaching the crossing from the direction in which the train did come on the day in question by a person looking for same when driving an auto truck when the driver would be six feet to the east of the east track of the railroad crossing? A. About 450 or 500 feet.

"Q. 6. State the distance a train could have been seen approaching the crossing from the direction in which the train did come on the day in question by a person looking for same when driving an auto truck when the driver would be twelve feet to the east of the east track of the railroad crossing? A. About 450 feet.

"Q. 7. State the distance a train could have been seen approaching the crossing from the direction in which the train did come on the day in question by a person looking for same when driving an auto when the driver would be twenty feet to the east of the east track of the railroad crossing? A. About 400 feet.

"Q. 8. Where was the plaintiff with reference to the railroad track when he first saw the train? A. About 4 or 5 feet west of the west rail.

"Q. 9. How far north of Walker avenue was the approaching train when the plaintiff drove upon the railroad track? A. About 800 feet.

"Q. 10. If you find that the plaintiff is entitled to recover herein then state what act or acts of negligence the defendant, its servants, agents or employees are guilty of. A. Not having proper signals at railroad crossing in question and exceeding speed limit of city ordinances."

1. The first proposition argued by the director-general is that this action was abated by an action commenced by the plaintiff August 13, 1918, for the recovery of the damages sought to be recovered in this action. That action was pending at the time the present action was tried. This action was commenced on June 28, 1920. The plaintiff says that "there was no evidence presented to the trial court of the pendency of any prior suit." The abstract recites that--

"Plaintiff, through his attorney, admitted that another suit for this same accident, entitled Austin Long, Plaintiff, vs. Missouri Pacific Railway Company, a corporation, and Walker D. Hines, Director-general of railroads, No. 9785, was filed August 13, 1918, in the district court of Wyandotte county, Kansas, and was pending at the time this suit was tried but giving as a reason that the former suit was filed against the Missouri Pacific Railway Company, and they came in and answered that they changed the name to the Missouri Pacific Railroad Company, whereby this suit was filed."

The pendency of the prior action was pleaded in the answer; a general denial was filed thereto; and the statement quoted was made in open court. That statement was sufficient evidence to establish the allegations of the answer. James C. Davis, director-general and agent for the United States under the Transportation Act, is the successor in office to Walker D. Hines, director-general, one of the defendants named in the former action. There is nothing to show that the former action was further prosecuted after the latter action was commenced. The issues could be submitted to the jury in one action as well as in the other. It does not appear wherein any substantial right of either party was affected by the fact that two actions were pending at the time this action was tried. By section 581 of the code of civil procedure, this court is commanded to "disregard all mere technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining, where it appears upon the whole record that substantial justice has been done by the judgment or order of the trial court."

There was a misnomer of one of the defendants in the former action. The misnomer was pleaded apparently by both defendants. This action was then commenced, and the former action seems to have been abandoned by the plaintiff. The judgment in this action can be pleaded as a bar to the further prosecution of the one previously commenced. There can be but one judgment. When the misnomer was pleaded, the plaintiff could have amended his petition, but he did not choose to pursue that method. When he commenced the latter action, he should have dismissed the first one, but he did not do so. The case has been submitted to a jury, a verdict has been returned, and judgment has been rendered on it. No good purpose will be served by reversing that judgment and directing the trial court to dismiss this action and compel the parties to try the action first commenced, or dismiss it and commence another one. Simplicity of procedure requires that the issues between the plaintiff and the director-general should be determined in the action that has been tried and that the former action should not be permitted to remain on the docket of the district court of Wyandotte county. It may be, and probably is, true that the trial court should have sustained the plea in abatement, but that court did not do so. Substantial justice will be served if the appeal in this case is heard in this court on its merits and the plaintiff is compelled to dismiss the first action commenced by him and to pay all the costs in that action.

2. Appellant James C. Davis filed a demurrer to the evidence of the plaintiff, and that demurrer was overruled. It is contended that the demurrer should have been sustained. The evidence showed that the plaintiff was driving a...