Reader v. The Atchison

• Decision Date: 09 December 1922
• Docket Number: 24,056
• Citation: 210 P. 1112,112 Kan. 402
• Court: Kansas Supreme Court
• Parties: F. L. READER, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

210 P. 1112

112 Kan. 402

F. L. READER, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

No. 24,056

Supreme Court of Kansas

December 9, 1922

Decided July, 1922.

Appeal from Reno district court; WILLIAM G. FAIRCHILD, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

NEGLIGENCE--Collision Between Auto and Railroad Train--Auto Driver Negligent as Matter of Law. The proceedings considered in an action for damages sustained by the driver of an automobile, in a collision with a railway train at a highway crossing, and held, the automobile driver was negligent, as a matter of law.

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

F. L. Martin, John M. Martin, and James N. Farley, all of Hutchinson, for the appellee.

OPINION

BURCH, J.:

The action was one for damages for injuries to person and property, sustained by an automobile driver in a collision at a highway crossing with one of the defendant's trains. The plaintiff recovered, and the defendant appeals.

The railroad track extends from northeast to southwest, and the highway from east to west. The train approached the crossing from the southwest, and the plaintiff from the west. About a half mile southwest of the crossing the train came through a cut between two bluffs. At the crossing, the railroad track is four feet above the general level of the ground, and is reached by an approach thirty feet long. The crossing was very rough, and there was a depression between the rails. The plaintiff was familiar with the crossing, and knew it was dangerous. The plaintiff testified he traveled at a good rate of speed until he was within 200 feet of the track. He then slowed down, looked for a train and saw none, shifted his gears, and proceeded slowly, at the rate of three or four miles per hour. He testified he had traveled about two-thirds of the distance to the track from the point where he slowed down, when he looked for the last time toward the southwest for a train. His excuse for not looking again was that he could not take his eyes from the rough crossing long enough to turn around far enough to see if a train were coming. The jury returned the following special findings of fact:

"1. How fast was the train running at the time of the accident? A. 50 to 60 miles per hour.

"3. Was the country generally level along both the road and the railroad for at least one-half mile from the place of the accident? A. Yes.

"5. Is it a fact that the plaintiff could if he had looked have seen the defendant's train all the time after it came out of the cut about one-half mile from the crossing? A. Yes, if crossing and approach had been constructed as required by law.

"6. How far west of the crossing where the accident happened was the truck when Mr. Reader last looked along the railroad track in the southwesterly direction? A. 60 to 75 feet.

"7. Was the defendant railroad company or any of the employees negligent? A. Yes.

"8. If you answer the above question in the affirmative, state if you can which employee was negligent and state in what respect he was negligent. A. Yes, the railroad company by not building proper approach and crossing at point of accident, and engineer and fireman in not sounding proper whistle and ringing of bell."

The plaintiff submits with his brief a plat, drawn to scale, showing the locations of the train and of the plaintiff at the times mentioned in the testimony. The plat shows the train was 900 feet from the crossing when the plaintiff was 60 feet from it. If, as the plaintiff testified, and as the jury found, he looked for a train when he was approximately 60 feet from the track, he should have seen the train, because it was out of the cut and in plain sight only a little more than one-sixth of a mile away.

The plaintiff testified as follows:

"At the Santa Fe crossing of the township road the top of the rails is about four feet above the level of the road. I was driving east approaching the crossing from the west. The west approach to the crossing is about 30 feet long. The approach will go up the four feet in about 30 feet. The decline begins right at the west rail, drops off from the rail."

The plaintiff testified he shifted his gears because the grade was steep and in bad condition and the crossing was unsafe. He testified his attention was occupied with the grade and with the crossing, and the jury found he could have seen the train but for the condition of the approach and crossing. When the plaintiff was at the foot of the approach, and just before he started up the grade, the train was only 450 feet away. He was then in a place of safety, which he was about to leave for a place of danger of such character he could no longer watch for the on-coming train. Leaving out of account the fact that he had seen, or must be held to the consequences of having seen, the train when he was 60 or 75 feet from the crossing, he ought to have looked before he proceeded to render himself helpless by starting up the 30-foot approach.

The fact that the plaintiff would have been obliged to turn in his seat and look backward is of no consequence. A traveler approaching a railway crossing must be vigilant in trying to see. (Railway Co. v. Jenkins, 74 Kan. 487, 488, 87 P. 702.) Ordinary prudence requires that an automobile driver use his faculty of sight near the track, where it will be of most benefit to him. (Gage v. Railway Co., 91 Kan 253, 258, 137 P. 938.) The time to look is when he is about to cross. That is the time when he is about to encounter the danger portended by a railway crossing, and it is not enough that he look at a point some distance from the crossing, when looking on nearer approach would reveal danger. (Railway Co. v. Wheeler, 80 Kan. 187, 191, 101 P. 1001; ...