Rathbone v. The St. Louis & San Francisco Railway Company

• Decision Date: 07 April 1923
• Docket Number: 24,156
• Citation: 113 Kan. 257,214 P. 109
• Court: Kansas Supreme Court
• Parties: J. T. RATHBONE, and EMMETT RATHBONE, by J. T. RATHBONE, his Father and Next Friend, Appellants, v. THE ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Appellee

214 P. 109

113 Kan. 257

J. T. RATHBONE, and EMMETT RATHBONE, by J. T. RATHBONE, his Father and Next Friend, Appellants, v. THE ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Appellee

No. 24,156

Supreme Court of Kansas

April 7, 1923

Decided January, 1923.

Appeal from Labette district court; ELMER C. CLARK, judge.

Affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

RAILROAD CROSSING--Collision with Automobile--Failure to "Stop Look and Listen"--Contributory Negligence--Special Findings. In an action for the death of a person in a collision with a train at a railway crossing over a public highway, where the general verdict was against the railway company, and where the special findings of the jury clearly showed that the deceased and the driver of a motor truck in which they were riding were guilty of contributory negligence, the trial court did not err in setting aside the general verdict and rendering judgment in favor of the railway company on the special findings of the jury.

Elmer W. Columbia, of Oswego, for the appellants.

R. R. Vermilion, and W. F. Lilleston, both of Wichita, for the appellee; W. F. Evans, of St. Louis, Mo., of counsel.

OPINION

DAWSON, J.:

Here is another railway-crossing case. It was an action by a husband and son for the death of Bessie Rathbone, wife of one of the plaintiffs and the mother of the other.

Bessie Rathbone and her son, while on an errand for her husband, were traveling northward on a public road in a Reo speed-wagon, approaching the defendant's railway crossing at the village of Hallowell. At that point the defendant's railway consisted of a main line and sidetrack, running east and west. The sidetrack was about 9 feet south of the main track. On the east side of the highway, immediately south of the railway, were an elevator, a corn crib, a coal bin and stockyards which shut out the view of trains approaching from the east. As Mrs. Rathbone and her son were passing over the main line track, their vehicle was struck by a westbound train, and she was killed.

Plaintiffs pleaded various wrongful acts and delicts on the part of defendant. The latter pleaded contributory negligence.

The jury's general verdict was in favor of the plaintiffs, but it was set aside and judgment entered for defendant on special findings also rendered by the jury. The propriety of such judgment is the question in this appeal, and its determination requires us to set out the special findings at some length:

"DEFENDANT'S . . . SPECIAL QUESTIONS.

"Three: On the occasion in question did Emmett Rathbone completely stop the automobile truck to ascertain before driving on the main line track whether it was safe to proceed? Answer: He did not.

"Five: On the occasion in question at what rate of speed per hour was defendant's train approaching the point of accident? Answer: 35 to 40 mi. per hour.

"Six: If on the occasion in question, when Emmett Rathbone or Bessie Rathbone, where they sat in said automobile truck, got within nine feet of the main line track, they had come to a complete stop and had listened and looked for an engine or train along the main line in the direction from which the engine and train were then coming thereon, what, if anything was there to prevent them or either of them from seeing or hearing the approaching engine and train? Answer: Nothing.

"Seven: If on the occasion in question, when Emmett Rathbone or Bessie Rathbone, where they sat in said automobile truck, got within seven feet of the main line track, they had come to a complete stop and had listened and looked for an engine or train along the main line in the direction from which the engine and train were then coming thereon, what, if anything, was there to prevent them or either of them from seeing or hearing the approaching engine and train? Answer: Nothing.

"Eight: If you find for plaintiffs, please state upon what grounds of negligence, if any, you base your verdict. Answer: Condition of crossing.

"Nine: On the occasion in question, when Emmett Rathbone and Bessie Rathbone, where they sat in said automobile truck, were nine feet south of the south rail of the main line track, could the defendant's fireman have seen them or either of them if he had then looked in that direction from the fireman's cab? Answer: Yes.

"Ten: Do you find that Emmett Rathbone first saw the defendant's approaching engine between twenty-five and fifty feet away when the seat of the automobile truck was about over the south rail of the main line track? Answer: Yes.

"PLAINTIFFS' SPECIAL QUESTIONS.

"No. 1. If the crossing had been level and free of ruts and depressions, would the train have struck the truck containing Bessie Rathbone, deceased? A. No, not in our judgment.

"No. 2. If the crossing had been level for thirty feet on each side of the main line track and free of depressions, where, in reference to the main line track, would the truck containing Bessie Rathbone, deceased, have been at the time the train arrived at the point where the accident did occur? A. Clear of the main line.

"No. 3. At the time when the train struck the automobile truck, how fast was truck traveling? A. 2 to 3 miles per hour.

"No. 4. If you find that the truck had almost come to a stop what caused the truck to almost stop? A. Condition of the crossing.

"No. 5. What were Emmett Rathbone and Bessie Rathbone doing just before entering upon said crossing? A. Don't know."

It will be noted that the negligence of the railway company (finding 8) was limited to the condition of the crossing. This in effect acquitted the defendant of the other charges of negligence. (Roberts v. Railway Co., 98 Kan. 705, 161 P. 590.) As to this particular negligence, the plaintiffs' brief reads:

"The facts were, as disclosed by the evidence, that the distance between the north rail of the side track and the south rail of the main line track was nine feet nine inches; that the highway of the crossing was four or five inches higher on the south than the side track; that there was a sharp incline just before reaching that point about five or six feet from the south rail of the side track and that the road was five or six inches higher than the side track; that there was a rut between the side track and the main line and that it was rough between the rails. That the main line track was fourteen inches higher than the side track and the rail of the main line higher than the road right next to it by two or...