Polfer v. The Chicago

• Decision Date: 05 April 1930
• Docket Number: 28,938
• Citation: 286 P. 240,130 Kan. 314
• Parties: N. E. POLFER, Appellee, v. THE CHICAGO, GREAT WESTERN RAILROAD COMPANY, Appellant
• Court: Kansas Supreme Court

286 P. 240

130 Kan. 314

N. E. POLFER, Appellee, v. THE CHICAGO, GREAT WESTERN RAILROAD COMPANY, Appellant

No. 28,938

Supreme Court of Kansas

April 5, 1930

Decided January, 1930.

Appeal from Wyandotte district court, division No. 2; FRANK D HUTCHINGS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS--Collision at Street Crossing--Negligence of Flagman--Contributory Negligence Question for Jury. In an action for damages to a truck caused by a collision with an engine on a much-traveled street crossed by several railroad tracks, where a flagman was stationed who waved to the driver of the truck to go on, the question of the contributory negligence of the driver of the truck, in view of all the evidence pertaining thereto, is one of fact for the jury.

2. SAME--Amount of Damages. As to the amount of damages, the record is examined and it is held, the verdict was sustained by the evidence.

A. L. Berger, of Kansas City, and Walter H. Jacobs, of Chicago, Ill., for the appellant.

David F. Carson, of Kansas City, for the appellee.

OPINION

HARVEY, J.:

This is an action for damages to a motor truck injured in a collision with the defendant's engine at the intersection of defendant's tracks and Fifth street in Kansas City. The jury answered special questions and returned a verdict for plaintiff. Defendant has appealed.

Appellant's principal contention is that the driver of the motor truck was guilty of contributory negligence as a matter of law. This question was presented to the court below by a demurrer to the evidence, by a motion for a directed verdict, and other appropriate motions.

Fifth street in Kansas City, Kan., is a north-and-south street. It crosses the Kansas river over a bridge. A short distance north of the bridge there is a road or street leading to the west. Fifth street is intersected by seven railroad tracks numbered, for the purpose of identification in this action, from 1 to 7, inclusive, beginning at the south. Track No. 1 crosses Fifth street about 250 feet north of the bridge, and track No. 7 about 225 feet north of track No. 1. Tracks 1, 2, 3 and 4 are tracks of the Kansas City Southern railroad, and tracks 5, 6 and 7 are tracks of the Kansas City Terminal railroad. These tracks, particularly 5, 6 and 7, cross Fifth street at an angle from the northeast to the southwest. The distance between tracks 5 and 6 is 45 feet, and between tracks 6 and 7, 10 feet, if measured at right angles, but if measured along Fifth street the distances are 64 feet and 81 feet, respectively. Tracks 6 and 7 are thoroughfare tracks used for through movements, such as interchange movements, and are never used for the storage of cars. On track 7 trains travel west only, and on track 6 trains travel east only. These tracks are used for the movement of freight cars from one part of the terminal yards to another. Tracks 1 to 5, inclusive, are cross-over tracks used for switching movements, and on them, or some of them, particularly track 5, empty cars are frequently stored to the east and west of Fifth street. These are much-used railroad tracks. Just east of Fifth street and between tracks 4 and 5 is the flag shanty, and a flagman is kept on duty. On the west side of the street between tracks 4 and 5 is the ordinary railroad-crossing sign. Fifth street is paved with brick except between tracks 5 and 6, where it is surfaced with cinders, and between tracks 6 and 7, where it is surfaced with plank. It is admitted that there is a heavy motor vehicular traffic along Fifth street across these railroad tracks, "all the way from one hundred to one hundred thousand cars a day."

Plaintiff is a farmer and feeds hogs garbage from the city. This is hauled by a truck in large cans. He had a large two-ton Peerless truck driven by his employee, Dennis Reardon, which was used for that purpose. The truck was loaded at a dock just north of the river and west of Fifth street. Reardon had been driving this truck about three years, hauling garbage from this dock to plaintiff's farm, and crossed these railroad tracks on Fifth street an average of five times a day. On the day of the collision Reardon had loaded the truck and drove on to Fifth street just north of the bridge and was driving north on Fifth street across the railroad tracks. It was about 4:45 in the afternoon on February 17. It was cloudy, raining a little, or misting rain, with some fog. The street was slippery. The street was practically level, perhaps a little uphill from the point where he entered the street to the point of collision, which was on track 7. The truck, with the load on it, weighed about 14,000 pounds. It was an open truck with a covered cab for the driver. There was a curtain on the right-hand side, but in this the isinglass had been broken out. As Reardon drove north approaching track 1, and when within about twenty-five feet of that track, he stopped and looked for trains and saw none. He started to drive north, driving in intermediate gear, at a speed eight to ten miles per hour. On track 5 a number of large refrigerator cars were standing, extending from near the street some distance to the east. As Reardon drove past the flag shanty the flagman motioned for him to go on. Reardon drove on to the north. In the condition of the street and at the speed he was going Reardon could have stopped his truck in thirty-five feet. As he approached track 7 he saw defendant's engine coming from the east, pulling six freight cars on that track. He put on his brakes and tried to stop, but it was too late. The southwest part of the engine struck the front part of the truck, smashing the engine, radiator hood and frame, and turned the truck to the west, where it stopped near the edge of the street. It was not turned over. Defendant's engine stopped at a distance of about 200 or 250 feet. It was going at a speed of about twenty to twenty-five miles per hour at the time of the collision. Had Reardon at the time he crossed track 5 looked to the right along track 7 there was nothing except the weather conditions to have prevented him from seeing the oncoming train, which at that time, if the speed was estimated correctly, was about 250 feet northeast of Fifth street. But he did not look in that direction at that time, and he did not see the train until he was near track 7, and the train was almost upon him, and he was not able to bring his truck to a full stop before colliding with the train.

There was a city ordinance which (if it is valid, and its validity is not questioned here) made it a punishable offense for those in charge of an engine to permit it to cross this street at a speed greater than six miles per hour, and which also required that if the engine were backing some one should be on the rear end of it to warn persons and avoid accidents, and there is evidence on behalf of plaintiff that the engine was backing and that no one was on the rear end of it. We might say that plaintiff's evidence to the effect that the flagman did not try to stop Reardon, that the train was going at an excessive speed, that it was backing and no one on the rear end of it, and that it ran 200 feet or more before it stopped, is all sharply controverted by evidence on behalf of defendant, but it was the function of the jury and the trial court to weigh this conflicting evidence, and the verdict of the jury based on such conflicting evidence and approved by the trial court cannot be disturbed here. Hence we have stated the evidence offered on behalf of plaintiff on these conflicting points. In determining the legal question presented we must take it as true that the flagman was in his shanty, that he made no effort to stop the driver of the truck but, on the other hand, waved to him to go on, that the train was going at an unlawful and an unreasonable speed, and that it was moving backwards with no one on the rear end to avoid accidents. These things clearly establish the negligence of defendant. But the question still remains, Was the driver of the truck guilty of contributory negligence by the fact that when on track 5, at a distance of 81 feet from track 7, he could have looked to the right and seen the train approaching about 250 feet from the point of collision and did not see the train until he was so close to it that he could not stop before his truck collided with the train?

Appellant invokes the rule, frequently applied by this court (see Butts v. Railway Co., 94 Kan. 328, 146 P. 1142; Acker v. Railroad Co., 106 Kan. 401, 188 P. 419, and cases cited therein; also United States supreme court in B. & O. R. R. v. Goodman, 275 U.S. 66, 72 L.Ed. 167, 48 S.Ct. 24, and allied cases) to the effect that a railroad track is itself a sign of danger and that a traveler who approaches the track on a highway must use due care to look, listen, or stop if necessary, before driving...