Peterson v. The Atchison

• Decision Date: 05 April 1924
• Docket Number: 25,017
• Citation: 115 Kan. 751,225 P. 116
• Court: Kansas Supreme Court
• Parties: J. C. PETERSON, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

225 P. 116

115 Kan. 751

J. C. PETERSON, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

No. 25,017

Supreme Court of Kansas

April 5, 1924

Decided January, 1924.

Appeal from Sedgwick district court, division No. 3; JESSE D. WALL judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

NEGLIGENCE--Railroad Crossing Accident--Contributory Negligence of Driver of Truck Fact for Jury. Record of an action for damages for injuries sustained in a railroad crossing accident examined, and held that plaintiff's contributory negligence was not so clearly established as to make it a question of law, and that the record discloses no error justifying a reversal of the judgment.

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

John W. Adams, William J. Wertz, and George Adams, all of Wichita, for the appellee.

Hopkins J. Dawson, J. dissenting.

OPINION

HOPKINS, J.:

The action was one for personal injuries sustained by the plaintiff at a street crossing when a two-ton motor truck which he was driving was struck by one of defendant's trains. The plaintiff recovered and defendant appeals.

The collision occurred at the Lincoln street crossing of the railroad in the city of Wichita. Lincoln street extends east and west and the railroad north and south. Two tracks cross the street--the main track and a sidetrack--the sidetrack being on the east. The testimony, among other things, showed that the plaintiff approached the crossing from the east; that, when about eight feet from the switch track he stopped his truck, raised up in the seat, listened, looked both to the north and to the south, and did not see or hear any train; that the view to the north was obstructed by a string of box cars on the defendant's east (side) track; that the street was not paved; that the main traveled portion was well to the south side of the street; that the cars extended out into and over half the street from the north; that the south car of the string was about twelve feet north of this traveled way; that the cars obstructed plaintiff's view to the north; that about half an hour before the collision these same box cars had obstructed the view of another party of a train coming from the north--one who crossed in the same place; that the cars were there at least an hour after the collision; that, at the crossing, there was what is commonly known as a "wig-wag" for the purpose of signaling a warning of approaching trains; that a wig-wag is a red disc about two feet in diameter; has a light in it and when it swings back and forth the light works off and on; that it has a round bell about twelve inches in diameter and while the wig-wag is swinging the bell rings; that this wig-wag had been out of repair for some time and was not operating the day of the accident; that within a week after the collision it was taken out and a new one installed.

The plaintiff testified:

"I approached from the east to the west up to this string of box cars. The wig-wag was not ringing that day. There was no alarm given or any signal whatever given by it. When I stopped my truck just east of the track I shifted the gears into intermediate and started my car slowly and drove up on the track. The distance between the switch track here and this main track . . . is just twelve feet. When I first saw this train coming I had just got past the box car. The front wheels of my truck were going over clear on the track, on the west Santa Fe track. The car looked to be about fifteen feet of me; I was looking all the time. . . . There was no bell rung on the engine or any signal given or alarm before I crossed the track or before he struck. . . . Before I could have backed off the track I would have had to stop my automobile and then back. I did not have time to do that. My automobile was running at the time I reached the west rail of the main track about three or four miles an hour. I kept looking and listening during the time from the time I stopped eight feet east of the switch track upon which these cars stood, up to the time I got out so I could see the car coming from the north yard. I did not hear or see anything. . . . It would have been impossible to stop or get either way."

Another witness testified:

"I think I would have heard if they had rung bells or whistles or the bell on the train. I saw the collision occur."

Another witness testified:

"I was down at the point of collision on the 30th day of September, 1920. I know that crossing. I noticed that the wig-wag was not working. I noticed the box cars on the east switch-track there. The view was obstructed from seeing any train coming from the north when you were going west. The motor truck after the accident was about 80 or 100 feet south of the crossing. I was at the point of the accident about one hour. While I was there a train passed south and no gong rang and one passed north and there was no gong rang."

Among the questions submitted to the jury and answers given were these:

"Q. 1. Did the plaintiff stop his motor truck and look and listen for a train or car that might be approaching on the defendant's railroad track at a point about eight feet east of the defendant's switch track or service track, just before the collision? A. Yes.

"Q. 2. Was there any point east of the main line track that the plaintiff could see the approaching engine and tender and car, until the front end of his motor truck had reached a point two to four feet east of the main line track? A. No.

"Q. 3. Did the plaintiff continually look and listen for approaching engines or cars upon the defendant's track before attempting to cross the same? A. Yes.

"Q. 4. Was there anything that the plaintiff could have done to avoid injury to himself after he saw the approach of the defendant's tender and engine and car, backing southward just before the collision? A. No."

The jury found also that the engine, at the time of the collision, was going at a speed of six or seven miles an hour; the truck about four miles per hour; that the plaintiff, in approaching the railroad, stopped and looked and listened for approaching cars when about twenty to thirty feet east of the track on which the collision occurred; that the negligence of the defendant consisted in failing to keep the wig-wag in repair, and in setting the cars in the street.

The defendant contends that "the court should have taken the case from the jury and decided, as a matter of law, that the plaintiff was guilty of contributory negligence"; that it was not negligence on the part of the defendant to leave the box cars in the street; that it was the plaintiff's duty to stop his truck, get down and go forward until he was beyond the box cars to see whether any train might be approaching; that, inasmuch as he could not see the approaching train on account of the cars standing on the switch, he was guilty of contributory negligence in not leaving his truck and going forward for the purpose of ascertaining if the way was clear. In support of this contention it quotes as follows from various cases to show that the cars were left on the sidetrack in the ordinary course of its business.

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