Moler v. The Chicago

• Decision Date: 07 July 1917
• Docket Number: 20,792
• Citation: 101 Kan. 280,166 P. 488
• Court: Kansas Supreme Court
• Parties: JOEL N. MOLER, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

166 P. 488

101 Kan. 280

JOEL N. MOLER, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

No. 20,792

Supreme Court of Kansas

July 7, 1917

Decided July, 1917.

Appeal from Jewell district court; RICHARD M. PICKLER, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

RAILROAD CROSSING-- Traveler in Wagon--Train Visible-- Collision--Contributory Negligence. The rule that contributory negligence is not to be ascribed as a matter of law to one who, through bewilderment, makes an injudicious choice of a means of escape from a sudden peril, does not apply in an action against a railway company for injuries resulting from a crossing collision, where the defendant's only negligence was in running the train at sixteen miles an hour, and the plaintiff while driving a team at an ordinary walk could have seen the train when it was 300 feet away and he was 22 feet from the track, and there was nothing to prevent his turning to one side excepting his fear and excitement.

Paul E Walker, and Luther Burns, both of Topeka, for the appellant.

I. M. Mahin, F. W. Mahin, both of Smith Center, D. M. McCarthy, and J. R. White, both of Mankato, for the appellee.

OPINION

MASON, J.:

Joel N. Moler was in a wagon, driving south on the main street of Esbon, toward its intersection with the Rock Island railroad, as a passenger train approached from the west, the station being about 350 feet east of the street. The engine struck the horses and overturned the wagon, causing injuries on account of which Moler sued the receivers of the railway company. The plaintiff recovered and the defendant appeals.

The only question presented is whether the special findings show conclusively that the accident was due to the plaintiff's failure to exercise ordinary care, and therefore require a judgment for the defendant notwithstanding the general verdict against it. The jury found, in answer to special questions, that the plaintiff was familiar with the place and had been in the habit of crossing the track there for about seven years; that the whistle was sounded at the whistling post; that the train was running at the rate of sixteen miles an hour; that the plaintiff could have seen it approaching when it was 300 feet from the crossing, and he was within 22 feet of the nearest rail; and that he was driving at an average walking gait. In reply to a question calling for a statement of the acts of negligence upon which they based a verdict for the plaintiff they answered:

"That the defendant's servants negligently and carelessly ran one of their locomotives and train of cars attached thereto up to, upon, and across said crossing at a dangerous rate of speed, and further that after the fireman saw the plaintiff, that no signals were given of the approach of the train."

Inasmuch as the plaintiff could have seen the approaching train at least as soon as the fireman saw him, and did do so if he exercised sufficient diligence to relieve himself from the charge of contributory negligence, the latter portion of the finding just quoted may be disregarded, for the failure to notify him of the oncoming train after it was visible to him could not form a basis for a judgment in his favor. The jury also found that the crossing bell--an automatic electric gong--was not ringing. If the failure to keep that device in working order had necessarily constituted negligence the finding as to the negligence relied upon could be interpreted as an enumeration of the grounds of negligence additional thereto. (Springer v. Railroad Co., 95 Kan. 408, 148 P. 611.) But the question whether such failure was negligence was one of the issues of fact submitted to the jury, and their omission to include it in their enumeration of negligent acts relied upon shows that they did not consider the company in fault with respect thereto. ( Adams v. Railway Co., 93 Kan. 475, 144 P. 999.) A further finding was made that certain witnesses named did not hear the engine bell ring. This does not necessarily imply that it was not ringing, and does not modify the finding which limits the negligence relied upon to those specifically named. (Land v. Railroad Co., 95 Kan. 441, 445, 148 P. 612.) Two other questions and answers read thus:

"Could the plaintiff at any point where he could have seen the train had he looked and before reaching the main track have turned to the left and avoided the accident? A. No.

"If you answer the last question in the negative, then state what if anything prevented him from so doing. A. Through fear, fright or excitement."

As the plaintiff was enabled to see the train while he was still twenty-two feet from the track, his effort to cross ahead of it would ordinarily be held to constitute contributory negligence as a matter of law. A somewhat similar case, in which the earlier ones are collected, is Railway Co. v Wheelbarger, 75 Kan. 811, 88 P. 531. The answer last quoted necessarily excludes the...