Modlin v. Consumers Co-op. Ass'n
| Decision Date | 08 March 1952 |
| Docket Number | No. 38445,38445 |
| Citation | 241 P.2d 692,172 Kan. 428 |
| Parties | MODLIN v. CONSUMERS COOPERATIVE ASS'N et al. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
In an action to recover damages under the wrongful death statute wherein it is conceded the plaintiff's intestate decedent, a railroad engineer, was killed in a collision between a train and a motor transport at a railroad crossing and the plaintiff's cause of action is based upon a claim that negligence in the operation of such motor transport was the proximate and legal cause of the collision and subsequent death of the engineer the record is examined, and it is held, the trial court did not err:
1. In sustaining the plaintiff's motion to strike portions of defendants' amended separate answers.
2. In overruling defendants' motions for judgment on plaintiff's opening statement.
3. In overruling defendants' demurrer to the plaintiff's evidence.
4. In refusing defendants' requested instructions or in giving the instructions submitted.
5. In overruling a motion for defendant notwithstanding the verdict.
6. In overruling the defendants' motion for a new trial.
7. In rendering judgment against defendants.
Irwin Snattinger, of Topeka, and Sam Mandell, of Kansas City, both argued the cause and were on the briefs for the appellants.
J. E. DuMars, of Topeka, argued the cause, and Clayton M. Davis and Mark L. Bennett, both of Topeka, were with him on the briefs, for the appellee.
This is an appeal by the Consumers Cooperative Association and its insurance carrier, American Fidelity Casualty Company, Inc., from a judgment rendered against them for damages on a verdict returned by a jury in an action instituted by F. Eva Modlin, as administratrix of the estate of Clarence C. Modlin, a deceased railroad engineer, under the wrongful death statute, G.S.1947 Supp. 60-3203, now G.S.1949, 60-3203.
The pleadings on which the cause was submitted to the jury can be summarized briefly. For the moment all that need be said respecting them is that the petition states a cause of action under the statute and alleges that plaintiff's intestate decedent, while in charge of and operating a Chicago, Rock Island and Pacific Railway Company engine, was killed in a collision between a motor transport belonging to the defendant association and a passenger train belonging to the railway company at a railroad-highway crossing and that the negligence of such defendant, which was denied by its answer as well as that of the insurance company, was the proximate cause of the decedent's death.
Many factual allegations of the petition, not now important, were admitted by the defendants' answers. In addition each such defendant alleged in its answer that the deceased engineer's negligence in the operation of the train at a high and excessive rate of speed of at least 100 miles per hour, under conditions and circumstances which made it impossible for him to bring the train to a stop at the crossing when the occasion required, was the direct and proximate cause of his death. The answers also charged that such decedent assumed all risks attendant upon the operation of the train under existing circumstances and that plaintiff was estopped to deny the decedent was free from negligence by reason of the fact the railway company had confessed his negligence as well as its own by settling and disposing without suit, of claims filed against it by other employees who were assisting in the operation of the train at the time of the accident. On motion of the plaintiff all allegations, except the admissions referred to in this paragraph of the opinion, were stricken from the answers by the trial court and the propriety of that ruling is one of the questions for appellate review.
With issues joined, as heretofore related, a jury was empaneled and sworn to try the cause. Thereupon plaintiff made her opening statement. At its close defendants moved for judgment on such statement. When this motion was overruled plaintiff adduced her evidence. After she had introduced all her evidence defendants demurred thereto. This demurrer was also overruled. Defendants then adduced their evidence. At the close of all the testimony they requested certain instructions which were denied. Thereafter, under instructions submitted by the court, the jury retired to the jury room and in due time returned a single verdict in favor of the plaintiff and against both defendants. Thereupon counsel for defendants requested that a separate verdict be returned against the defendant Casualty Company for the amount of its insurance coverage only. This request was granted and the jury, in compliance with instructions of the court, returned two verdicts, one against the Casualty Company for the amount of its insurance coverage and the other against the Consumers Association for the full amount of damage found to be due. Thereafter the defendants filed motions for judgment notwithstanding the verdicts and motions for a new trial. When these motions were overruled they perfected this appeal.
The points relied upon by appellants as grounds for reversal of the judgment are succinctly set forth in their specifications of error which read:
'1. The District Court erred in sustaining Plaintiff's motion to strike portions of amended separate answers of the defendants Consumers Cooperative Association and American Fidelity and Casualty Co. Inc.
motion for judgment in their favor on the opening statement of plaintiff's counsel.
demurrer to the evidence offered by the plaintiff for the reason that it failed to sustain any of the allegations of negligence contained in plaintiff's petition, for the further reason there was a complete failure of proof and for the further reason as set out in Defendants' demurrer to the evidence.
requested instructions to the jury and to fully instruct the jury thereby.
motion for a new trial.
motion for judgment notwithstanding the verdict of the jury.
So far as the facts are concerned the vital issue involved in this case is whether those admitted by the answers, and others established by the evidence, are sufficient to warrant the trial court's action in submitting to the jury for its decision, as a question of fact, the question whether negligence on the part of the driver of the motor transport was the proximate or legal cause of the collision. Indeed, there is little, if any, dispute between the parties as to the factual situation on which a decision of such issue depends. On that account, without distinguishing between admissions and facts established by the evidence, the facts essential to a proper understanding of the conditions and circumstances prevailing at the time the accident occurred can be stated in narrative form as follows:
The train consisted of two diesel engines and eleven modern design light weight passenger cars. Locomotives No. 637 and No. 634 comprised the power units. Number 637 was the lead unit and its cab was occupied by the plaintiff's decedent, who operated and controlled the engines drawing the train, as locomotive engineer.
The motor transport consisted of a motor unit and semi-trailer tank which was loaded with approximately 3,000 gallons of gasoline and 1,300 gallons of distillate at the time of the accident.
The collision occurred at a point some seven miles southwest of Norton, Kansas, where the railroad track runs east and west and state highway No. 383 north and south, the two crossing substantially at right angles. The train was going west and the motor transport south. The driver of the transport was familiar with the highway and crossing, having traveled the highway and crossed the railroad track on a number of previous occasions.
For a distance of approximately 50 feet in each direction the crossing was substantially at grade. A standard cross-buck sign bearing the words 'Railroad Crossing' was located 27 1/2 feet north of the track, a standard highway railroad crossing sign was located 794.7 feet north of such track and in between the two signs, at a point 604 feet north of the railroad track, was a narrow bridge crossing what is known as Prairie Dog Creek.
There is some discrepancy in the testimony but it is clear the accident took place between 3:30 a. m. and 4:30 a. m., probably about 3:45 a. m. on December 23, 1947. It was cloudy that morning but there was no fog and, except for the fact it was dark, visibility was good.
The front diesel engine was equipped with a whistle which could be heard for several miles. It was also equipped with two headlights, one of which shone straight ahead and the other oscillated its rays from side to side somewhat similar to the upper part of a horizontal figure '8'.
When the train left Norton both headlights on the front engine were shining and they continued to shine until the moment of the crash. The oscillating light was seen by persons at a point approximately 10 miles west of the point of the collision. The whistle of the locomotive was blown and was heard by persons who happened to be awake at the early hour in question when the train was a considerable distance from the crossing. Witnesses also heard the regular crossing whistle followed by a long blast of the whistle which continued to the moment of the collision.
Evidence was also adduced, and not denied, to the effect that a person standing on the crossing or on the highway at any point within 240 feet north of the...
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