McRae v. Missouri Pacific Railroad Company

• Decision Date: 10 May 1924
• Docket Number: 25,249
• Parties: L. E. MCRAE, as Administrator, etc., Appellee, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant
• Court: Kansas Supreme Court

225 P. 1032

116 Kan. 99

L. E. MCRAE, as Administrator, etc., Appellee, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant

No. 25,249

Supreme Court of Kansas

May 10, 1924

Decided January, 1924.

Appeal from Sedgwick district court, division No. 2; THORNTON W SARGENT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Railroad Crossing Accident--Proximate Cause of Injuries--Findings of Jury. In an action for damages for injuries received in a railroad crossing accident, where the jury finds for the plaintiff and that defendant was negligent in permitting cane and vegetation to grow upon its right of way and the evidence and instructions are not before us, we cannot say that the negligence found was not a proximate cause of the injury.

2. SAME--Injury to Guest of Driver of Automobile--Findings of Two Proximate Causes of Collision--Negligence of Railroad Company Liable for Collision. When a guest in an automobile is injured in a railroad crossing accident and in an action for damages therefor against the railroad company the jury find negligence of the defendant to be a proximate cause of the injury, the fact that the jury also find that the manner in which the automobile was driven was a proximate cause of the injury will not relieve the railroad company from liability.

W. P. Waggener, J. M. Challiss, both of Atchison, and O. H. Bentley, of Wichita, for the appellant.

Robert C. Foulston, A. M. Ebright, George Siefkin, and Sidney L. Foulston, all of Wichita, for the appellee.

OPINION

HARVEY, J.:

This is an action for damages for personal injuries. The jury answered special questions and returned a general verdict for plaintiff. The defendant appealed from the order of the court overruling its motion for judgment on the special findings and entering judgment for plaintiff.

One day in August, 1922, Frank B. Fulkerson was driving an automobile from Wichita to Haven. Mildred McRae, about five years of age, her brother, sister, and aunt were riding in the back seat as guests of the driver and having no control over his operation of the automobile. At a railroad crossing en route the automobile collided with defendant's train and Mildred was injured. She brought this action by her next friend for damages for her injuries and pending the trial died of scarlet fever. The action was revived and prosecuted in the name of her administrator.

The petition alleges many acts and conditions of negligence on the part of defendant. The jury returned a general verdict for plaintiff for $ 750 and specifically found defendant negligent in permitting cane and vegetation to grow upon its right of way. The jury exonerated defendant from liability because of other acts of negligence charged and specifically found that the whistle was blown and that there were danger signs at the crossing. They also answered the following special question, No. 7 1-2: "Do you find that the injury to Mildred McRae was proximately caused by the manner in which the automobile was driven? Ans.: Yes." Defendant moved for judgment notwithstanding the general verdict. Plaintiff moved to set aside finding No. 7 1-2 and for a new trial. In overruling all these motions and rendering judgment for plaintiff the court incorporated in the judgment the following:

"I want the Journal entry to show that from the findings of fact and the general verdict, the Court concludes that there are two proximate causes of a collision and injury to Mildred McRae, deceased; one, the negligence of the driver of the automobile, as shown by Question 7 1-2 which because of her youth is not attributable to Mildred McRae, and the other, the negligence of the Missouri Pacific Railway Company in permiting cane and vegetation to grow upon its right of way and thereby obstructing the view of the driver of the car as shown by Question and Answer No. 9.

"If there can be but one proximate cause of the injury and that was the negligence of...