Nevitt v. The Atchison

• Decision Date: 09 February 1924
• Docket Number: 24,980
• Court: Kansas Supreme Court
• Parties: MYRTLE NEVITT, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

223 P. 269

115 Kan. 439

MYRTLE NEVITT, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

No. 24,980

Supreme Court of Kansas

February 9, 1924

Decided January, 1924.

Appeal from Cowley district court; OLIVER P. FULLER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Collision Between Automobile and Railroad--Issues for Jury--Excessive Speed of Train--Contributory Negligence of Deceased. In a railway crossing accident case, the evidence examined and held sufficient to raise a jury question touching the negligence of the defendant in operating its train at excessive speed and whether that excessive speed was a proximate cause of the accident, and whether the deceased, who was a guest in the automobile and was killed in the collision, was free from contributory negligence.

2. SAME--Inconsistency in Special Findings of Insufficient Importance. Certain special findings not supported by evidence, examined, and held to be of insufficient importance to disturb the general verdict and judgment.

William R. Smith, Owen J. Wood, and Alfred A. Scott, all of Topeka for the appellant.

Harold W. Herrick, and James A. McDermott, both of Winfield, for the appellee.

OPINION

DAWSON, J.:

This was a railway crossing damage case.

Plaintiff's husband, George Nevitt, was riding as a guest in a Ford car enclosed with an all-weather top. The driver was Irwin Gibson who was seated on the left side, and Nevitt sat by his side on the right. Olive street runs east and west in the north suburban part of Winfield. The railway coming from the north intersects Olive street at right angles. Irwin and Nevitt turned into Olive street a short block east of the crossing. They drove westward and as their car was going over the tracks it was struck by defendant's train coming at high speed from the north and Nevitt was killed.

The plaintiff, Nevitt's widow, charged defendant with negligence in the operation of its train, causing the death of her husband, in this--

"That said train was operated by the defendant, its employees and servants at a high and excessive rate of speed in excess of forty miles per hour, and through a populated portion of said city. . . ."

The evidence, while lengthy, showed little of importance except the main fact that Nevitt was killed at the railway crossing by being struck, or the Ford in which he was riding being struck, by defendant's train which was speeding at 40 to 55 miles an hour. About 600 feet north of the crossing the railway track veered to the northwest. East of the crossing on the north side of Olive street and close to the railway, there was a house and barn which shut off the view of an approaching train until the track was nearly reached, but no satisfactory evidence as to the approximate distance was given. One reason for such uncertainty, perhaps, was that by consent of all parties the jury were taken to view the situation and had a first hand view of the crossing, the approach from the east, the obstructions to the view, the limited distance between the first point of view and the point of collision, and the distance at which a train coming from the north could be seen by a person about to cross the track or to be driven as a guest across the track.

The driver of the car in which the deceased was riding, Irwin Gibson, testified for the railway company:

"I was acquainted with George Nevitt. On the day of the accident he was at my house. . . . in the afternoon. . . . We left my house in my brother-in-law's Ford. . . . I drove the car. . . . When we entered Olive street we were about a block east of the railroad, then turned west. I was driving and Mr. Nevitt was with me. I was on the left hand side of the car. He was on the right hand side. There was only one seat in the car. It was a closed car. . . . I think the window on the north side was closed. We were driving along there about ten miles an hour. It was running in pretty good shape when I drove it across there. . . . At the rate we were going I could stop the car in about fifteen feet. As I drove along there I never looked up to see if the train was coming. Mr. Nevitt told me about it. That was after we got to the track. You can't see the railroad crossing as quick as you turn west, because a house is in the way. After we turned the corner there at Olive Street and started west toward the railroad I could see the railroad crossing. There was a crossing sign there. I could see that. . . . When we turned the corner there we were not quite half a block from the railroad crossing. I didn't look to see whether the train was coming until after we got by the house. I could see after we got by the house. I don't remember of looking to see if a train was coming, I might have. I never seen the train coming. I did not see Nevitt look. . . . I continued right on until I got on the track, at ten miles an hour. Mr. Nevitt cautioned me that a train was coming just as the train was on us, just as we got on the track. Before that he said something, it wasn't time for any train yet, something like that. He didn't tell me whether he looked or not. We were talking as we were driving along there. Neither one knew anything about a train coming until we were right on the track. The train was right on us when we drove on the track. Our car didn't stall or anything like that. Went right on until the train hit us. All I seen was the engine head. I don't remember what hit me. I have no recollection of seeing the train any distance away from us up the track. Mr. Nevitt didn't mention seeing a train coming at any time before we got hit, except just before we were hit. I looked up, there was the train, and that is all. It was right on us. I had not heard it before that. . . .

"Cross-examination. I remember of testifying before that it was a little bit before we got on the track before I saw the engine and sometime along there Mr. Nevitt said 'look out' or something like that, and started to get up to get out of the machine. The engine seemed to be going rapidly. Mr. Nevitt was trying to get out of the car. I remember that distinctly. Mr. Nevitt didn't tell me whether he looked or not as we approached the track coming up Olive Street, and I don't know whether he looked or not. . . .

"Redirect. If he looked he didn't say anything to me about it. If he looked he didn't tell me there was any train coming. He just mentioned the train, I don't know now just what he did say about that. We were just around the corner when he mentioned that. I never had no time to think about where I was at when Mr. Nevitt spoke about the train. I know I was awful close to the train when it hit me. We were nearer than ten feet to the track when he made that remark. If we hadn't been I would have stopped."

Nevitt apparently had succeeded in getting partly out of the enclosed car before the collision, as his body was flung free from it, while Gibson, the driver, was held fast in the wrecked automobile.

The jury returned a verdict for $ 4,000 in favor of plaintiff, and made special findings of fact:

"1. If deceased had looked at any time after he arrived within one hundred feet of the crossing would he have seen the train approaching? Ans. No.

"2. How far north of the crossing was the train of the defendant when it could have first been seen by the deceased? Ans. Six hundred feet.

"3. At what rate of speed did the deceased's driver run the automobile from the point where he could have seen the approaching train to the point of the collision? Ans. Seven to ten miles.

"4. At what distance from the crossing was the engine of the approaching train when the fireman first saw that the automobile was in such a position of peril that the driver could not stop in time to avoid the collision? Ans. Thirty feet.

"5. If you find for the plaintiff state specifically what act or acts, omission or omissions you find constituted the defendant's negligence? Ans. Excessive speed and neglect of fireman to notify engineer.

"6. If you find that the defendant by its agents, and employees ran its train wantonly upon the automobile of the plaintiff state specifically and separately each act or omission of the employees of the defendant which you find have been wanton, wilful and reckless? Ans. Failure of the fireman to notify the engineer of the approaching automobile.

"7. At the rate of speed at which the automobile in which the deceased was riding was going could deceased have saved his life by getting out of the automobile before it was on the track if he had looked to see if a train was approaching? Ans. No.

"8. Could deceased have avoided the accident if he had looked and seen or heard the approaching train...