Schaefer v. The Arkansas Valley Interurban Railway Company

• Decision Date: 08 March 1919
• Docket Number: 21,972
• Citation: 104 Kan. 394,179 P. 323
• Parties: JOHN F. SCHAEFER, Appellee, v. THE ARKANSAS VALLEY INTERURBAN RAILWAY COMPANY, Appellant
• Court: Kansas Supreme Court

179 P. 323

104 Kan. 394

JOHN F. SCHAEFER, Appellee, v. THE ARKANSAS VALLEY INTERURBAN RAILWAY COMPANY, Appellant

No. 21,972

Supreme Court of Kansas

March 8, 1919

Decided January, 1919.

Appeal from Sedgwick district court, division No. 2; THORNTON W SARGENT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. AUTOMOBILE--Injuries at Railroad Crossing--Negligence--Contributory Negligence. Where an interurban railway company permits needless obstructions to the view on its right of way near a country crossroad, such company must take such obstructions into account in the discharge of its duty to exercise due care in the operation of its cars at such crossing; and the company is liable in damages to a person who, free from negligence herself, was injured because such obstructions to her view rendered the crossing dangerous and because of the high rate of speed at which the company's car approached the crossing.

2. SAME--Injuries at Railroad Crossing--Evidence--Photographic Exhibits. Photographic exhibits which were introduced in evidence and which tend strongly to prove that there were no material obstructions to the view at a railway crossing over a rural highway, are insufficient, in a court of appeal, to overthrow the parol and other evidence contradictory thereto, when the jury gave greater credence to the latter than they did to the photographic exhibits.

3. SAME--Injuries at Railroad Crossing--Evidence--Findings. Where a jury in answer to special questions found that the person who was fatally injured at a railway crossing over a public highway could have seen the approaching interurban car in time to warn the driver of the vehicle in which she was riding, at 132 feet, and at 82 feet, but answered, "Can't say," and "Doubtful," in response to similar questions as to her range of vision at 15 feet, 25 feet, and 30 feet, such findings construed together do not establish her contributory negligence as a matter of law, and a jury's general verdict which is consistent with such findings must stand.

Chester I. Long, and Austin M. Cowan, both of Wichita, for the appellant.

D. M. Dale, S. B. Amidon, S. A. Buckland, H. W. Hart, and Glenn Porter, all of Wichita, for the appellee.

OPINION

DAWSON, J.:

This action for damages records another railway-crossing accident.

The plaintiff was traveling eastward on a public highway. He drove a Ford automobile, and his wife rode by his side. Defendant's interurban railway crossed this highway diagonally southeast and northwest. As plaintiff and his wife were crossing this railway track, his automobile was struck by defendant's northbound interurban car, and his wife was killed.

Because of plaintiff's contributory negligence he was non-suited as to his own claim for damages for the death of his wife; but the trial court permitted a recovery of $ 1,000 in behalf of his minor children for their loss in the death of their mother, on the theory that she herself had been free from negligence.

No motion for a new trial was filed, appellant preferring that its appeal should be limited to a review of such errors of law as may inhere in the record and judgment.

Certain special questions were answered by the jury:

"1. Did not the deceased, Roxy Ann Schaefer, being seated on the front seat of the automobile and on the side from which the interurban car approached the crossing and not being engaged with the operation of the automobile, have a better opportunity of seeing the approaching interurban car than the plaintiff? Answer: The same opportunity.

"2. Did the deceased, Roxy Ann Schaefer, look for the approaching interurban car after passing the point 25 feet west of the interurban track Answer: Yes.

"3. Did the deceased, Roxy Ann Schaefer, warn the plaintiff of the approach of the interurban car before the automobile went upon the interurban tracks? Answer: No. . . .

"4. State the distance the interurban car approaching from the southeast could have been seen by a person looking for the same seated in the front seat of a Ford automobile in the public highway--(a) 25 feet west of the center of the interurban track? Answer: Can't say.

"(b) 30 feet west of the center of the interurban track? Answer: Can't say.

"(c) 82 feet west of the center of the interurban track? Answer: 590 feet to 1,250 feet.

"(d) 132 feet west of the center of the interurban track? Answer: 1/5 to 1/4 mile.

"5. Could the interurban car approaching from the southeast be seen by a person seated in the front seat of a Ford automobile upon the public highway--

"(a) 11 feet west of the center of the interurban track? Answer: In our judgment it could.

"(b) 15 feet west of the center of the interurban track? Answer: Doubtful.

"(c) 20 feet west of the center of the interurban track? Answer: No.

"6. In what distance could a Ford automobile containing two people on the front seat approaching the crossing in question at a speed of not more than six miles per hour on the public highway from the west be stopped after reaching a point twenty-five feet west of the center of the interurban track? Answer: 4 feet.

"7. Could a person seated in the front seat of a Ford automobile in the public highway 120 to 125 feet west of the center of the interurban track see the interurban car approaching from the southeast? Answer: Can't say. . . .

"8. If you find the defendant guilty of any act or acts of negligence which approximately caused the accident in question state what such act or acts of negligence were. Answer: Allowing trees and shrubbery to grow upon right of way and approaching a dangerous public crossing at a high rate of speed.

"9. What was the purpose of the plaintiff and the deceased in traveling in the automobile on the day of the accident? Answer: Going home.

"10. Was it the habit or custom of the deceased, Roxy Ann Schaefer, in driving with her husband in the Ford automobile, to keep a lookout for approaching cars at railroad crossings? Answer: Yes.

"11. Who in the Ford automobile first saw the interurban car approaching the crossing prior to the accident, the plaintiff or his wife? Answer: Wife. . . .

"13. Was the deceased, Roxy Ann Schaefer, familiar with the crossing in question and the approach to the same? Answer: Yes. . . .

"15. If you answer question 2 in the affirmative, state how many feet west of the center of the interurban track deceased, Roxy Ann Schaefer, looked for the car approaching? Answer: No evidence."

1. Defendant contends that the acts of negligence found by the jury were not the direct and proximate cause of the accident. The negligence found by the jury was "allowing trees and shrubbery to grow upon right of way and approaching a dangerous public crossing at a high rate of speed." Of course, the operation of a railway train or interurban car at a high rate of speed in the open country is ordinarily not negligence at all. The track and equipment and the exclusive right of way are all constructed for the purpose of transporting passengers and property with high speed and safety, and ordinarily the railway company is not required to slacken speed at every country crossroads ( Railway Co. v. Judah, 65 Kan. 474, 70 P. 346; Bunton v. Railway Co., 100 Kan. 165, 169, 163 P. 801); but there are recognized qualifications of that rule. For example, if a railway engineer or motorman should see a person in difficulty at a country road crossing with a balky or frightened horse, or with a stalled automobile, in time to stop his train to avoid injury to such person, such engineer or motorman would be liable civilly and criminally if he willfully or negligently failed to do so, and ordinarily his employer would be liable in damages therefor.

The trial court gave this instruction:

"21. If the defendant discharged its duty of keeping its right-of-way adjacent to a public road that crosses its right of way free from obstruction such as trees and shrubs and discharges all the other duties imposed upon it, then as far as a traveler on a public road about to cross its track is concerned, it can run its cars at as high rate of speed as it desired, and the rate of speed, no matter how high it may be, is not an act of negligence so far as such traveler is concerned and cannot be the basis of an action for negligence by such traveler; but if the defendant negligently permits trees and shrubbery to stand upon its right of way adjacent to a public road that crosses its track, so that the view of a traveler as he approaches the track is obstructed thereby, then it is the duty of the defendant to use due care in the operation of its cars having in mind such obstruction, and to run them at such a rate of speed in approaching such highway crossing as to avoid doing unnecessary damage to those lawfully and properly using the same or about to use the same."

While...