McCune v. Thompson

• Decision Date: 29 January 1938
• Docket Number: 33623.
• Citation: 147 Kan. 57,75 P.2d 294
• Parties: McCUNE v. THOMPSON.
• Court: Kansas Supreme Court

75 P.2d 294

147 Kan. 57

McCUNE v. THOMPSON.

No. 33623.

Supreme Court of Kansas

January 29, 1938

Syllabus by the Court.

A railway track is itself a warning of danger, and one about to cross track must first assure himself that no train is approaching and that it is safe to cross.

One who attempts to cross railway track without first making sure that he can safely do so is guilty of negligence, and may not recover from railroad for resulting accident.

In action by motorist for injuries sustained in collision with train at crossing on rural township road, allegedly caused by railroad's negligence in maintaining an embankment and permitting weeds to grow thereon, which obscured driver's view, jury's special findings that driver stopped 30 feet from track, where she could only see 100 feet up the track whereas she could have seen approximately 3,900 feet when 12 feet from the track, held to preclude recovery, on ground of contributory negligence.

At the intersection of a railway and a rural township road plaintiff's automobile was struck by defendant's train. She charged defendant with negligence in maintaining an embankment near the track and permitting weeds to grow thereon, which obscured her view of the oncoming train. Held under the special findings of the jury touching various distances in which she could have seen the train as she drove her automobile towards the railway track, and thus have avoided the accident, plaintiff was guilty of contributory negligence which barred her recovery of damages.

Appeal from District Court, Butler County; George J. Benson, Judge.

Action for damages for injuries sustained in collision between automobile and train by Emma McCune against Guy A. Thompson trustee of the Missouri Pacific Railroad Company. From a judgment on a verdict for plaintiff, defendant appeals.

Reversed, with directions.

K. M. Geddes, of El Dorado, and W. P. Waggener, J. M. Challiss, O. P. May, and B. P. Waggener, all of Atchison, for appellant.

C. L. Aikman, of El Dorado, and L. C. Gabbert, of Wichita, for appellee.

DAWSON Chief Justice.

This was an action for damages for injuries sustained by the plaintiff when the automobile she was driving was struck by defendant's train at a township road crossing in Butler county.

The pertinent facts were chiefly these: About half a mile west of Benton there is a township road which runs north and south. This road is crossed by the Missouri Pacific Railway which runs east and west thereabout. To the north of the railway track and west of the township road there is an embankment which shuts off a westward view of the railway from a traveler on the public road until he gets close to the track.

On June 3, 1936, this plaintiff, who resides somewhere south of this railway crossing, had been visiting a relative who resided a short distance north of the railway. About 4 o'clock in the afternoon she started for home. In the automobile with plaintiff were her mother, aged 81, her brother, 56, her sister, 44, and two 10-year-old girls. When plaintiff's automobile traveling southward reached the crossing, it was struck by defendant's eastbound train, with fatal results to several of the occupants of the automobile, and with various and sundry injuries to this plaintiff.

Plaintiff sued for damages charging defendant with negligence in various respects. Defendant pleaded the general issue and contributory negligence.

The jury returned a verdict for plaintiff in the sum of $2,075, which included $487.50 to plaintiff's husband for loss of plaintiff's services due to her injuries. Accompanying the general verdict were special findings which require careful examination. These read:

"Q. (1) Did Emma McCune look to her right for an approaching train before driving upon the defendant's track? A. Yes.

"Q. (2) If you answer Question 1 in the affirmative, then state at what distance or distances north of the north rail she was when she looked? A. 30 feet.

"Q. (3) At what rate of speed did the automobile approach the crossing? A. 8 miles per hour.

"Q. (4) At what rate of speed did the train approach the crossing? A. 40 miles per hour.

"Q. (5) Did the plaintiff stop her automobile before driving upon the crossing? A. Yes.

"Q. (6) If you answer Question 5 in the affirmative, then state how far north of the north rail the automobile was stopped? A. Approximately 30 feet.

"Q. (7) If you find that the plaintiff stopped her automobile north of the north rail, then state how far west of the crossing an approaching train could have been seen from the point where she stopped the automobile? A. 100 feet.

"Q. (8) How far west of the crossing could an approaching train have been seen by the plaintiff?

"(a) When she was 25 feet north of the north rail? A. Approximately 300 feet.

"(b) When she was 20 feet north of the north rail? A. Approximately 500 feet.

"(c) When she was 16 feet north of the north rail? A. Approximately 1,500 feet.

"(d) When she was 12 feet north of the north rail? A. Approximately 3,900 feet.

"(e) When the front bumper of her car was 10 feet north of the north end of the railroad ties? A. Approximately 1,000 feet.

"Q. (9) If you find the defendant was guilty of negligence, then state fully, definitely and specifically of what such negligence consisted? A. Embankments and weeds.

"Q. (10) Do you find the plaintiff was guilty of contributory negligence? A. None."

All the usual post-trial motions were presented and overruled by the court, and judgment was entered for plaintiff.

Defendant appeals, contending chiefly that the special findings of the jury convicted the plaintiff of contributory negligence which barred a recovery in her behalf against the defendant.

Going directly to this point, it has long been settled law in this state, as throughout this country generally, that a railway track is itself a warning of danger. Bazzell v. Atchison, T. & S. F. R. Co., 134 Kan. 272, 5 P.2d 804. A person about to cross a railway track must first assure himself that no train is approaching and that it is safe to cross. If he attempts to cross without first making sure that he can safely do so, he is guilty of negligence, and he will not be permitted to penalize the railway company if an accident occurs. Our own reports are laden with decisions to this effect. The older cases were collated by the late Mr. Justice Marshall in Jacobs v. Railway Co., 97 Kan. 247, 154 P. 1023, L.R.A. 1916D, 783, Ann.Cas.1918D, 384, and Wehe v. Railway Co., 97 Kan. 794, 156 P. 742, L.R. A.1916E, 455, Ann.Cas.1918D, 230. In the latter case this court said: "The driver of an automobile cannot recover damages for injury to himself and his machine, where he approaches a railway track at a place at which he cannot see along the track until his automobile is in a place where it will be struck by a passing engine or cars, and does not stop his car to ascertain whether or not there is danger, although he listens before going into the place of danger and does not hear any engine or cars coming." Syl.

Bunton v. Railway Co., 100 Kan. 165, 168, 163 P. 801, was an action by a husband for the death of his wife who was killed in a railway crossing accident. The jury returned a verdict for plaintiff and answered several special questions, one of which was that plaintiff and wife had exercised ordinary care and reasonable prudence in crossing the railroad track at the time and place and in the circumstances. Such a finding, of course, was equivalent to an acquittal of plaintiff and his wife of contributory negligence. But another special finding showed that at 20 feet from the railway track the oncoming train could have been seen for a quarter of a mile. That highly significant fact compelled a reversal of the judgment. In the opinion the court said: "The duty to keep a sharp lookout for trains at a public crossing has often been expounded by this court. A railroad crossing is itself a danger signal. One who proposes to cross a railroad must look and listen. It is not required, in this state, that a person must necessarily stop, in order to look and listen, unless the surroundings and circumstances demand that unusual prudence. If the circumstances do demand such prudence, then there is a duty to stop, look, and listen. Wehe v. Railway Co., 97 Kan. 794, 156 P. 742, L.R.A. 1916E, 455 [Ann.Cas.1918D, 230]. While the plaintiff testified that he did keep a sharp lookout, the jury's special findings are that at 20 feet and at 30 feet from the crossing there was nothing to prevent the plaintiff from seeing the oncoming train. This in effect is a finding that he did not look to see if a train was approaching." 100 Kan. 165, at page 168, 163 P. 801, 802.

In the present case, the jury found that plaintiff stopped her automobile when she was 30 feet from the railway track, at which distance she could not have seen a train until it was only 100 feet from the crossing. Certainly nothing she could learn about the possibility of an approaching train within that short distance gave her any assurance that it was safe to cross the track.

The jury found that the defendant was negligent in permitting "embankment and weeds" (finding 9) in close proximity to the crossing which shut off plaintiff's view of the on-coming train at a...