Rhoades v. The Atchison

• Decision Date: 12 June 1926
• Docket Number: 26,776
• Citation: 246 P. 994,121 Kan. 324
• Court: Kansas Supreme Court
• Parties: ANGIE NETTIE RHOADES, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

246 P. 994

121 Kan. 324

ANGIE NETTIE RHOADES, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

No. 26,776

Supreme Court of Kansas

June 12, 1926

Decided January, 1926.

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

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE -- Contributory Negligence -- Intoxicated Persons -- Evidence. Upon the issue whether at a particular time a person was exercising due care for his own safety, evidence that he was intoxicated is ordinarily admissible, not as constituting or conclusively establishing negligence on his part, but as being a circumstance to be considered in determining the matter. (McIntosh v. Oil Co., 89 Kan. 289 131 P. 151.)

2. APPEAL AND ERROR--Grounds for Arrest of New Trial. On an appeal from an order granting a motion for a new trial, where the sole ground upon which the trial court based its ruling is held to be untenable, the appellant is entitled to a reversal unless the record affirmatively shows that the motion ought to have been sustained upon some other ground. (Sutter v. Harvester Co., 81 Kan. 452, 106 P. 29.)

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

No appearance was made for the appellee.

OPINION

HOPKINS, J.:

The plaintiff sued to recover damages for the death of her husband, alleged to have been caused by the negligence of the defendant. A verdict was returned for the defendant and against the plaintiff, who filed a motion for a new trial. The motion was sustained, and the defendant appeals.

It was alleged that the defendant railway was negligent in the following particulars: (1) In backing a freight train over the railroad crossing at an unreasonably high rate of speed; (2) in failing to give warning of the train's approach; (3) in failing to display a light on the rear end of the train as it approached the crossing; and (4) in failing to have a flagman or watchman at the crossing. The answer was: (1) a general denial; (2) that the death of plaintiff's husband was caused by his own negligence and not by reason of any negligence on the part of the defendant; and (3) that the deceased and one R. H. Bird were engaged in a joint enterprise.

The facts were substantially as follows: The deceased was a passenger in a Ford coupe owned and driven by R. H. Bird. They drove from Hutchinson on the evening of October 11, 1923, en route to Newton. Difficulty with the lights on the car was encountered, and upon reaching Halstead they drove into a garage and had the lights repaired. From there they drove to a restaurant, where they ate lunch, and then started for Newton. They approached the railway crossing at Halstead from the south. At that place are two main tracks, north of which is a spur track to a mill and elevator. The collision occurred at this spur track. Bird testified that when they approached the railroad crossing it was misting or raining; that he stopped his car at the south main line track, got out and wiped the windshield in order to get a better view; that they then proceeded north and ran into a freight train standing upon the crossing; that he did not see any signals or lights and heard no warning signals; that he could have stopped his coupe on a dirt road traveling at a speed of ten or twelve miles an hour, at which rate he was traveling at the time of the collision; and that he was ten or twelve feet from the train when he first saw it. He denied that either he or the deceased had been drinking that evening. He also testified that there was nothing the matter with the deceased as they approached the crossing or at the time of the collision, and that the deceased made no complaint of the manner in which he drove the car, and said nothing as they approached the crossing. There was evidence introduced by the defendant that after the deceased and Bird left the restaurant they approached the crossing at a high rate of speed, estimated at twenty-five to thirty-five miles an hour; that the street lights were burning brightly; that it was not raining at the time; that Bird did not stop his car to wipe the windshield as claimed; that the lights on Bird's car were bright; that the train had backed in on the spur to spot a car at the mill, and at the time of the collision had been occupying the crossing for approximately two minutes; that the defendant's brakeman was in the middle of the street with a lighted lantern in his hand; that he attempted to stop the approaching coupe with his lantern by waving it across the street; that when the coupe struck the train the deceased fell out and was caught by the brakeman, who smelled alcohol on his breath; that deceased handed another brakeman a quart bottle of intoxicating liquor, which was turned over to the sheriff and produced at the trial; and that the deceased was taken to a hospital, where a physician who dressed his wounds smelled alcohol upon his breath. Evidence that the deceased was "groggy" and seemed to be drunk while at the garage, and that conversation by him at the restaurant showed he was intoxicated, was rejected by the court because defendant's answer contained no specific allegation of the deceased's intoxication.

In McIntosh v. Oil Co., 89 Kan. 289, 131 P. 151, it was said:

"Upon the issue whether at a particular time a person was exercising due care for his own safety, evidence that he was intoxicated is ordinarily admissible, not as constituting or conclusively establishing negligence on his part, but as being a circumstance to be considered in determining the matter." (See, also, Cook v. Railway and Bridge Co., 101 Kan. 103, 165 P. 803.)

It has been held in an action against one for operating an automobile at a dangerous rate of speed that evidence of intoxication is admissible though not specifically pleaded. ( Milhouse v. Stroud, 134 S.C. 17.) The defendant's answer in the instant case alleged contributory negligence by the deceased, and that deceased and Bird were engaged in a joint enterprise. Intoxication in any degree is a circumstance to be considered in determining the question of contributory negligence. (Hughes v. Chicago, R. I. & P. Ry. Co., 150 Iowa 232, 129 N.W. 956.) Evidence of the intoxication of the deceased at the time of the injury complained of was admissible. (29 Cyc. 534, 620.)

In Jensen v. Chicago, Milwaukee & St. P. Ry. Co., 133 Wash. 208, 233 P. 635, it was said in the opinion:

"Objection is also made to an instruction upon the matter of Sonnabend's intoxication. This instruction was to the effect that if Sonnabend was at the time of the accident or immediately before under the influence of intoxicating liquor to such an extent as to dull his sense of sight and to prevent, or tend to prevent, him from exercising the care and caution which a sober and prudent man would have exercised under the circumstances, and that Jensen knew or should have known of Sonnabend's condition, and thereafter continued to ride with him, that this would constitute negligence on Jensen's part. The particular objection to the instruction is, not that it does not correctly state the law but that there is no evidence to justify the giving of an instruction on that subject. Two doctors who appeared at the scene of the accident about twenty minutes after it occurred testified that Sonnabend's...