Sexsmith v. Union Pac. R. Co.

• Decision Date: 08 April 1972
• Docket Number: No. 46277,46277
• Citation: 209 Kan. 99,495 P.2d 930
• Parties: Margaret SEXSMITH, Appellant, v. UNION PACIFIC RAILROAD COMPANY, Appellee. Auddie WEARREN, Appellant, v. UNION PACIFIC RAILROAD COMPANY, Appellee. HOME INSURANCE COMPANY, Appellant, v. UNION PACIFIC RAILROAD COMPANY, Appellee. COMMERCIAL UNION INSURANCE COMPANY, Appellant, v. UNION PACIFIC RAILROAD COMPANY, Appellee. RYDER TRUCK RENTAL, INC., Appellant, v. UNION PACIFIC RAILROAD COMPANY, Appellee.
• Court: Kansas Supreme Court

Page 930

495 P.2d 930

209 Kan. 99

Margaret SEXSMITH, Appellant, v. UNION PACIFIC RAILROAD COMPANY, Appellee.

Auddie WEARREN, Appellant, v. UNION PACIFIC RAILROAD COMPANY, Appellee.

HOME INSURANCE COMPANY, Appellant, v. UNION PACIFIC RAILROAD COMPANY, Appellee.

COMMERCIAL UNION INSURANCE COMPANY, Appellant, v. UNION PACIFIC RAILROAD COMPANY, Appellee.

RYDER TRUCK RENTAL, INC., Appellant, v. UNION PACIFIC RAILROAD COMPANY, Appellee.

No. 46277.

Supreme Court of Kansas.

April 8, 1972.

Rehearing Denied May 10, 1972.

Syllabus by the Court

1. No issue, other than an issue going to the jurisdiction of the court over the subject matter of the litigation, will be considered on appeal unless included in the statement of points in the record on appeal, in accordance with Rule 6(d) (205 Kan. xxix) of this court relating to appellate practice.

2. On a motion for directed verdict the trial court does not weigh evidence but must accept as true all the facts which the evidence tends to prove and draw against the party making the motion all reasonable inferences most favorable to the party opposing the motion, and if the evidence is of such character that reasonable men in an impartial exercise of their judgment may reach different conclusions, then the case should be submitted to the jury.

3. In considering a motion for directed verdict the question is not whether there is literally no evidence supporting the party against whom the motion is directed but whether there is evidence upon which the jury could properly find a verdict for that party. Even where facts are undisputed it is possible that conflicting inferences may be drawn from those facts, and where this is true, then the issues must be submitted to the jury.

4. Whether a railroad crossing is more than ordinarily dangerous is generally a question of fact, although the sufficiency of the evidence to establish that fact remains a question of law.

5. Where unusually dangerous conditions prevail at a railroad crossing the unusual hazard may make additional warnings and precautions by the railroad company necessary.

6. In an action to recover damages resulting from a truck-train collission at a railroad crossing the jury returned a special verdict (K.S.A. 60-249(a)) in favor of plaintiffs and against defendant upon the issue of liability. The trial court then sustained defendant's motion for directed verdict, reservation of decision of which had been made pursuant to K.S.A. 60-250(b), and entered judgment for defendant. On appeal by plaintiffs from that ruling it is held: (1) The issues of defendant's negligence and of contributory negligence of plaintiffs' decedents were properly submitted to the jury; (2) the special findings of the jury on the issue of liability were supported by the evidence; (3) the trial court erred in sustaining defendant's motion for directed verdict and in entering judgment for defendant; and (4) the jury's special verdicts are rienstated.

C. Stanley Nelson, of Hampton, Royce, Engleman & Nelson, Salina, and Frank C. Norton, Salina, argued the cause and were on brief for appellants.

Charles N. Henson, of Eidson, Lewis, Porter & Haynes, Topeka, argued the cause, and Philip H. Lewis, Topeka, was with him on brief for appellee.

HARMAN, Commissioner:

This appeal involves five damage actions consolidated for trial and review here. Two of the suits are for wrongful death and the remaining three are for property damage, all arising from a truck-passenger train collision.

Certain background facts were stipulated to at pretrial conference and may be summarized as follows: On February 8, 1966, at about 2:30 p. m. Union Pacific train number 70 collided with a Ford two-ton truck at the intersection of the main Union Pacific track and Ohio street in Salina, Kansas; the truck was owned by plaintiff Ryder Truck Rental, Inc., leased by it to Salina Office Supply and at the time of the collision was being operated by the latter's employees W. Lawrence Sexsmith or Elmer D. Warren acting within the scope of their employment; as a result of the collision Sexsmith was killed and left surviving him as his heirs at law his widow, plaintiff Margaret Sexsmith, and a daughter; Warren was also killed as a result of the collision and he left surviving him as his heirs at law his widow, plaintiff Auddie Warren, and two children; office equipment in the truck belonging to Salina Office Supply was destroyed, for which loss it was compensated by its insurance carriers, plaintiffs Home Insurance Company and Commercial Union Insurance Company; the truck belonging to plaintiff Ryder Truck Rental was totally destroyed. The parties also agreed upon the amount of some items of damage.

The trial court, on its own motion, decided to submit to the jury the issue of liability only, in advance of determination of the remaining factual issues of damages. At the conclusion of plaintiffs' evidence defendant moved for a directed verdict, which motion the court took under advisement; at the close of all the evidence defendant renewed this motion, which the court again took under advisement. Under appropriate instructions the liability issue was then submitted to the jury by was of special verdicts and interrogatories (K.S.A. 60-249(a)).

The questions submitted, and the jury's answers thereto, are:

'1. Q. Was the defendant, Union Pacific Railroad Company, guilty of any act of negligence which was the direct cause of said collision?

'Ans: Yes.

'2. Q. If your answer to No. 1 is in the affirmative, state of what such negligence consisted.

'Ans: A. Lack of proper signals.

'B. Location of railroad cars too close to the crossing for the speed of the train.

'3. Q. Was the driver of the truck negligent in the operation of the truck which negligence was a direct cause or a contributing cause of said collision?

'Ans: Lack of positive evidence.

'4. Q. If your answer to No. 3 is in the affirmative state of what such negligence consisted.

'Ans: X X

'5. Q. Were Elmer D. Warren and W. Lawrence Sexsmith engaged in a joint enterprise, as defined by the Court's Instructions, at the time of the said accident?

'Ans: Yes.

'If you answer question No. 5 in the affirmative then you need not answer questions numbered six and seven.

'6. Q. Was the non-driving occupant in the truck negligent which negligence was a direct cause or a contributing cause of the collision?

'Ans: X

'7. Q. If your answer to No. 6 is in the affirmative, state of what such negligence consisted.

'Ans: X

'8. Q. Did the Salina Office Supply truck stop at the stop sign located on the south side of the railroad tracks?

'Ans: Lack of positive evidence.

'9. Q. Who was the driver of the Salina Office Supply truck involved in the accident on February 8, 1966 with the Union Pacific Train No. 70?

'Ans: Lack of evidence.'

Defendant immediately moved the court to set aside the jury's answers to special questions numbered 1, 2, 3, 4 and 8. Without acting upon this motion the trial court then sustained defendant's motion for directed verdict, the ruling upon which it had previously reserved. The court stated it was convinced plaintiffs had not sustained the burden placed on them to establish the crossing as an unusually dangerous one; further that there was contributory negligence as a matter of law on the part of both the decedents inasmuch as they were found by the jury to have been engaged in a joint enterprise. The court accordingly entered judgment for defendant from which plaintiffs have now appealed.

Initially appellants raise a procedural issue respecting the trial court's action. They assert the trial court could not enter judgment for appellee because appellee had failed to ask for judgment. Appellants' statement of points contains no mention of this issue. The issue sought to be raised does not go to the jurisdiction of the court over the subject matter of the litigation. Hence under our Rule 6(d) relating to appellate practice (205 Kan. xxix) it will not be considered on appeal (Crowther, Administrator v. Baird, 195 Kan. 134, 402 P.2d 753).

Appellants challenge the propriety of the trial court's action sustaining appellee's motion for directed verdict in the light of the evidence. They assert the evidence sufficiently made a submissible case on appellee's negligence for a jury's determination and did not establish the decedents' contributory negligence as a matter of law.

Our cases are legion that upon a challenge to the sufficiency of evidence on an issue of fact by motion for a directed verdict, the court may not weigh conflicting evidence, but is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the motion is leveled; and if the evidence is of such character that reasonable minds may reach different conclusions thereon, the motion for directed verdict must be denied and the issue submitted to the jury (Lord v. Jackman, 206 Kan. 22, 23, 476 P.2d 596).

In considering a motion for directed verdict the question is not whether there is literally no evidence supporting the party against whom the motion is directed but whether there is evidence upon which the jury could properly find a verdict for that party (9 Wright and Miller, Federal Practice and Procedure, § 2524). Even where facts are undisputed it is possible that conflicting inferences may be drawn from those facts, and where this is true, then the issues must be submitted to the jury (ibid. § 2528).

The evidence adduced at trial reveals the following:

The locale of the collision was the intersection of appellee's tracks with Ohio street, a north and south street in Salina. Appellee has five sets of tracks at this point, its main line being the middle set. The tracks run generally east and west but intersect Ohio street at a slightly acute angle (measured from the south toward the west). The crossing has no watchman or signal device to warn of oncoming trains but does have a standard stationary...