Pagan v. Lowden

• Decision Date: 10 April 1937
• Docket Number: 33187.
• Parties: PAGAN v. LOWDEN et al.
• Court: Kansas Supreme Court

66 P.2d 567

145 Kan. 513

PAGAN v. LOWDEN et al.

No. 33187.

Supreme Court of Kansas

April 10, 1937

Syllabus by the Court.

Statute providing for maintenance of railroad grade crossings in certain manner held not repealed by statute authorizing Highway Commission to compel railroads to improve crossings in manner approved by commission, and, until Highway Commission does undertake to order some change in particular crossing, statute providing for maintenance of grade crossings is in effect (Gen.St.1935, 66-227, 68-414).

That railroad crossing did not comply with provisions of statute did not of itself render railroad liable for death of motorist whose automobile was struck by train at crossing (Gen.St.1935, 66-227).

In action against railroad for death of motorist whose automobile was struck by passenger train at crossing evidence of railroad's negligence held insufficient for jury (Gen.St.1935, 66-227).

In action against railroad for death of motorist whose automobile was struck by passenger train at crossing motorist held negligent as matter of law where he drove on tracks without keeping a lookout, and if he had kept lookout he could have avoided collision (Gen.St.1935, 66-227).

In an action for damages growing out of a collision between an automobile and a passenger train, the record is examined, and it is held that the evidence of plaintiff failed to prove negligence on the part of the railway company and did establish that the driver of the automobile was guilty of negligence, which was the proximate cause of the injury.

Appeal from District Court, Shawnee County, Division No. 1; George A. Kline, Judge.

Action by Margaret Pagan against Frank O. Lowden and others, as trustees of the Chicago, Rock Island & Pacific Railway Company. From a judgment for defendants, plaintiff appeals.

John J McCurdy, of Lincoln, and Randal C. Harvey and Paul L. Harvey both of Topeka, for appellant.

Luther Burns and J. E. DuMars, both of Topeka, for appellees.

SMITH Justice.

This was an action to recover for the death of the husband of plaintiff who was killed when his automobile was struck at a grade crossing by a train operated by defendant. Judgment was for defendant sustaining a demurrer to the evidence of plaintiff. Plaintiff appeals.

The tragedy happened on March 20, 1935. On that day there was a dust storm. Maximum visibility was reduced to between 300 and 750 feet. Deceased was struck and killed by a westbound passenger train of defendant at the crossing of federal highway No. 10 and the Rock Island tracks immediately adjacent to the city of Maple Hill about 200 feet east of the railway station.

The highway is an extension of Main street of the city. Proceeding south out of the city along its main street, just before reaching the crossing, the highway begins to curve slightly to the east. The crossing is made up of four tracks. Going south on the highway the first track encountered is a house track which is 51 feet from the westbound main track. Proceeding from this track to the main tracks the highway bears slightly to the east. From the house track to the main tracks the highway rises about 2 feet. The eastbound main track is 19 feet beyond the westbound main track upon approximately the same level. From this eastbound main track the highway drops about 6 inches to cross a siding track about 16 feet away. The highway then drops very abruptly. During all the distance occupied by the tracks mentioned the highway bears slightly to the east. After it crosses the side track spoken of it turns almost at right angles to the east. On the day of the tragedy there was a string of five boxcars standing on the house track east of the highway. The west end of the car that was farthest to the west was about 21 feet east of the highway.

Having made the physical features of the crossing plain, since this case comes to us on an appeal from an order sustaining a demurrer to the evidence of plaintiff, we shall take note of what the evidence showed happened on the evening of the tragedy.

The petition described the crossing and the death of deceased and pleaded that defendant was negligent in operating its train at a dangerous rate of speed over an extensively traveled crossing at which the view from both directions was obstructed by buildings and cars during a severe dust storm, and in maintaining an unsafe crossing, as set out in the petition, in violation of R.S. 66-227 (G.S.1935, 66-227), and in failing to take extra precautions to warn persons on the highway of the approach of such train under the conditions prevailing at the time.

The defendant answered with a general denial and that the county commissioners, together with officials of the defendant, had inspected the crossing and found that changes in it were unnecessary and so advised defendant.

The answer further alleged that the death of deceased was caused by his own negligence.

The first witness for plaintiff, as to what happened, testified that he was on the north side of five boxcars which stood on the house track to the east of the highway with the westermost car about 21 feet from the east line of the highway. He testified as to physical conditions of the crossing, about which there does not seem to be much dispute, and then testified that he had driven over the crossing many times in a Chevrolet car, and on approaching the crossing you could not judge your position within 3 or 4 feet on account of the rise that has been spoken of.

He testified that on the day of the accident he saw the train coming when it was about to the stockyards, but the light was dim on account of the dust; that he was facing the direction from which the train was coming and in his judgment the train was going about 60 miles an hour; that he saw deceased cross the house track and he was going between 15 and 20 miles an hour. On cross-examination he testified that the stockyards might be 550 feet from the highway; that he heard the rumble of the train and heard it whistle; that he heard the train, started to get in his truck and back up and saw deceased coming down the street at a slow rate of speed "and he went by me" after the train had whistled. From where he was standing he could see the train as far away as the stockyards; that the only thing to obstruct the view of deceased as he approached the house track was the five boxcars; that after he passed the boxcars there was nothing to obstruct deceased's view but a battery box and a rack to hang mail sacks on; that from a point 30 feet north of the main line on a clear day you could see a mile away; that on the day in question a person could see ahead 300 or 400 feet; that he saw the train coming down by the stockyards because he was looking for it; that he examined the car after the wreck and found the gears to be in reverse.

The next witness for plaintiff testified that he had driven over the crossing; that on account of the slope in the highway he could not judge the distance in front of him as well as if the car had been on the level; that on approaching this particular crossing you would have to look to the east and west for trains; "that if a person were driving up the...