Scott v. St. Louis-San Francisco Railway Company

• Citation: 113 Kan. 477,215 P. 280
• Decision Date: 12 May 1923
• Docket Number: 24,435
• Parties: A. L. SCOTT et al., Appellees, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant
• Court: Kansas Supreme Court

215 P. 280

113 Kan. 477

A. L. SCOTT et al., Appellees, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant

No. 24,435

Supreme Court of Kansas

May 12, 1923

Decided January, 1923.

Appeal from Wilson district court; SHELBY C. BROWN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

NEGLIGENCE--Death at Railroad Crossing--Findings of Jury Interpreted--Contributory Negligence. In a railroad crossing case the special findings are held not to demonstrate that the exercise of due diligence on the part of the driver of the automobile would have avoided the collision, because they do not show at what distance he could have seen an approaching train if he had stopped his car and walked to the track to see if it were clear.

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

J. L. Stryker, and D. J. Sheedy, both of Fredonia, for the appellees.

OPINION

MASON, J.:

A. L. Scott was killed by being struck by a passenger train of the St. Louis-San Francisco Railway Company while attempting to cross its track in an automobile. His sons brought this action against the company and recovered a judgment upon a general verdict. The defendant appeals on the ground that the special findings required a judgment in its favor.

The jury found that the train approached the crossing at the rate of 50 miles an hour and that the automobile approached the railroad track at 12 1/2 miles an hour. To a question calling for the grounds of negligence on which the verdict was based they answered: "Dirt on embankment, weeds, hedge, and grass on their right of way, obstructing the view of their trains." They answered "about 400 feet" to the question: "On the occasion in question, if A. L. Scott had stopped his automobile and looked out along the railroad track to the east in the direction from which the train was coming, when he (where he sat) was fourteen (14) feet north of the railroad track, about how many feet east along said track could he have first seen said engine and train approaching?" Two other questions were asked in the same form, putting the distance from the track at 10 and 9 feet, the answers being "About 500 feet" and "About 600 feet." Obviously the finding just quoted does not mean that if the driver of the automobile when 14 feet from the track had looked he would have seen the train, which would then have been 400 feet away. If that construction were adopted it would follow from the three findings on the subject that the nearer he got to the track the farther away the train was. The meaning clearly is that at 14 feet he could have seen the train if it was within 400 feet of the crossing--the matter determined being the extent of the field of vision and not the place actually occupied by the train.

The evidence has not been brought to this court and we are required to affirm the judgment if it can be sustained by assuming any reasonable state...