McClain v. The Chicago

• Decision Date: 08 March 1913
• Docket Number: 17,837
• Citation: 89 Kan. 24,130 P. 646
• Court: Kansas Supreme Court
• Parties: HESTER A. MCCLAIN, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

130 P. 646

89 Kan. 24

HESTER A. MCCLAIN, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

No. 17,837

Supreme Court of Kansas

March 8, 1913

Decided January, 1913.

Appeal from Sedgwick district court, division No. 2.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEW TRIAL--No Motion--Errors Waived. Ordinarily any ruling or ground for which a new trial may be granted is waived by the neglect of a party to ask for a new trial.

2. MOTION--For Judgment on Special Findings--When Sustained. Where no motion for a new trial is made, but instead a party moves for judgment on the special findings, notwithstanding the general verdict, the question is whether, after indulging every reasonable inference in favor of the general verdict the special findings returned by the jury are so antagonistic to it as to be absolutely irreconcilable with it, and so complete in themselves as to warrant the entry of judgment thereon.

3. CONTRIBUTORY NEGLIGENCE -- Street Crossing -- Gates Not Lowered--Reasonable Care. Where gates have been erected and maintained by a railroad company where its road crosses a public street in a city, and which are to be lowered by a gateman when trains are passing over the street, the fact that such gates are up when a person approaches the crossing is some assurance to him that he can safely proceed to cross, and while it will not excuse him for a failure to exercise reasonable care for his safety, he is not required to exercise the same vigilance as he would be at a crossing where gates had not been erected and maintained.

4. Same. A traveler approached a railway crossing over a much traveled street in a populous city where gates had been built and maintained, and finding them open proceeded to cross the street without looking up the track, where a passenger train was approaching from the north at an excessive and unlawful rate of speed, and which he could have seen if he had looked. After starting across the tracks a freight train came over the crossing from the other direction and caused him to stop between the two tracks in a space eight and one-half feet wide. After standing there about fifteen seconds he was struck by the engine of the passenger train and killed. Whether he exercised due care for his own safety, in view of the conditions existing at the crossing and under the circumstances of the case, or was guilty of contributory negligence, is held to be a question of fact for the determination of a jury.

M. A. Low, and Paul E. Walker, both of Topeka, for the appellant.

David Smyth, A. E. Helm, and J. W. Smyth, all of Wichita, for the appellee.

OPINION

JOHNSTON, C. J.:

This action was brought by the appellee, Hester A. McClain, to recover damages from the appellant, The Chicago, Rock Island and Pacific Railway Company, for negligently causing the death of her husband, W. M. McClain. The appellant operates a line of railway through the city of Wichita and across Douglas avenue, the principal street of the city. The railroad is built upon Meade avenue, which runs north and south, and at the intersection of Meade and Douglas avenues it consists of two tracks. The passenger station of appellant is located on the west side of Meade avenue and immediately south and adjoining Douglas avenue. At the intersection of these streets crossing gates had been placed, as required by an ordinance of the city, but they appear to have been out of repair at the time in question. The two tracks across Douglas avenue were eight and one-half feet apart and the distance from center to center of the tracks was thirteen feet, two and one-half inches. On the afternoon of June 28, 1909, W. M. McClain, his son and another companion were walking on the north side of Douglas avenue going towards his home in the eastern part of the city. When they arrived at the crossing a considerable number of people had congregated on the depot platform and there were a number of cabs and other vehicles in the street near there awaiting the arrival of the passenger train. After they had started across Douglas avenue a north-bound freight train, using the east track, began to cross Douglas avenue and W. M. McClain, who was about sixty-eight years of age, and his companion stopped on the west side of the track to await the passage of the train, while his son hurried over in front of the train. While standing between the east and west tracks awaiting the passage of the freight train a south-bound passenger train, traveling at a speed of from twenty to thirty miles an hour, came down upon them. The buildings on Douglas avenue extended to Meade avenue, but the distance from the west edge of Meade avenue to the west track was about thirty feet. When McClain arrived within twenty feet of the west track he could have seen an approaching train from the north a distance of about a half mile if he had looked for it. At the time the gates were up and there was no watchman at the crossing. McClain halted between the two tracks awaiting the passage of the freight train about fifteen seconds before he was struck by the passenger train. From two or four seconds before he was struck some persons near by saw his danger and shouted to him. Apparently the first he knew of the approach of the passenger train was the sounding of a shrill alarm whistle about two hundred feet away. On hearing this whistle the deceased became confused and in his excitement stepped nearer to the west track, turning his back towards the approaching passenger train. He was caught by some part of the engine, thrown towards the top of it, and in some way he was drawn under the train and killed.

In the petition the negligence alleged was the running of the train at a dangerously high rate of speed across a public street near the business center of the city contrary to an ordinance of the city limiting the rate of speed to five miles an hour, also, the failure of the appellant to have the automatic safety gates closed as required by another ordinance. The absence of a watchman to warn persons about to cross the track of the approach of trains was alleged, and also the failure of the engineer on the passenger train to give proper signals on approaching Douglas avenue, as well as the giving of the shrill blast when the engine was so close to McClain as to startle and confuse him. On the part of the appellant it was contended that McClain was guilty of contributory negligence in going upon the crossing and standing there for some time without looking for the approach of a train on the west track, when he could have had a view towards the north for a distance of about a half mile if he had looked. The jury awarded damages against the appellant in the sum of $ 1999, and returned answers to special interrogatories which were submitted to it. No motion for a new trial was made, but appellant asked for judgment on the special findings.

No objections are made to instructions or rulings on the trial, and since no motion for a new trial was made no question can be raised here as to the sufficiency of the evidence to sustain the findings of the jury. It has been determined that any matter or ground for which a new trial may be granted is waived by neglect of the party to ask for a new trial. (Nesbit v. Hines, 17 Kan. 316; City of Atchison v. Byrnes, 22 Kan. 65; Decker v. House, 30 Kan. 614, 1 P. 584; McNally v. Keplinger, 37 Kan. 556, 15 P. 534.)

One of the grounds for a new trial is that the verdict is contrary to the evidence, and before that question can be considered on appeal a motion for a new trial based on that ground must have been submitted to and decided by the trial court. On the motion for judgment on the special findings mere inconsistency in the findings will not avail, as that is a ground for a new trial, but the question is whether, after indulging every reasonable inference in favor of the general verdict, the special findings are so antagonistic as to be absolutely irreconcilable with it, and so complete in themselves as to warrant the entry of judgment thereon. ( Osburn v. Railway Co., 75 Kan. 746, 90 P. 289.)

Upon some of the issues herein no interrogatories were submitted and, hence, all of the facts in the case are not embraced in the special findings. The principal ones upon which judgment was asked were that McClain was familiar with the crossing that he went upon the crossing without looking north for an approaching train, that after he entered upon the crossing the view was unobstructed for one-half mile, and that if he had looked when he started across he could have seen the passenger train in time to have retreated to a place of safety, and that when he reached the east track he stood there about fifteen seconds before he was struck and from eight to ten seconds intervened from the time the engineer sounded the whistle a block away and the time that he was struck by the train. It is insisted that as he was well acquainted with the crossing it was incumbent upon him to use his eyes and ears to discover whether there was a train approaching upon the west track, and if he had done so he would have seen the train, and not having exercised that precaution he was guilty of contributory negligence which bars a recovery for his death, notwithstanding the negligence of the railway company. It must be held that the railway company was guilty of negligence, notwithstanding the fact that the engineer applied the emergency brakes and did all he could to stop the train and avoid...