Sheets v. Baldwin

• Decision Date: 06 November 1937
• Docket Number: 33421.
• Citation: 146 Kan. 596,73 P.2d 37
• Parties: SHEETS v. BALDWIN et al.
• Court: Kansas Supreme Court

73 P.2d 37

146 Kan. 596

SHEETS v. BALDWIN et al.

No. 33421.

Supreme Court of Kansas

November 6, 1937

Syllabus by the Court.

The mere fact that there has been a collision between automobile and train, and that automobile driver was injured, is not of itself sufficient basis on which to predicate railroad's liability.

In motorist's action against railroad for injuries sustained when motorist drove into freight train at highway crossing on dark, stormy night, evidence that freight cars were dark-colored so as not to be easily seen, that train cut off view of crossing sign, and that railroad had no warning lights, was insufficient showing of negligence, in absence of proof that crossing was peculiarly dangerous (Gen.St.1935 68-414).

The evidence, in an action against a railway company to recover damages in a highway crossing accident, examined, and held that such evidence disclosed defendant was not negligent in respect to any duty it owed plaintiff, and that defendant's demurrer to such evidence should have been sustained.

Appeal from District Court, Cowley County; Stewart S. Bloss, Judge.

Action by Orville B. Sheets against L. W. Baldwin and Guy A Thompson, trustees of the Missouri Pacific Railroad Company. From a judgment for plaintiff, defendants appeal.

Reversed and remanded, with instructions.

W. L Cunningham and D. Arthur Walker, both of Arkansas City, and W. P. Waggener, J. M. Challiss, O. P. May, and B. P. Waggener, all of Atchison, for appellants.

O. Renn and George Templar, both of Arkansas City, for appellee.

THIELE Justice.

Defendants appeal from a judgment allowing plaintiff damages for injuries sustained in a collision of an automobile with & railroad train. The first specification of error is that the trial court erroneously overruled defendants' demurrer to plaintiff's evidence.

As nearly as may be, our statement of plaintiff's evidence will be limited to showing the manner in which the collision occurred, and as tending to show whether defendants were guilty of negligence which occasioned plaintiff's injuries. On February 1, 1936, plaintiff was driving an automobile from Missouri to his home in Arkansas City, Kan. About 7 p. m., he stopped in Iola and examined the condition of his windshield and headlights and cleaned them, as it had been sleeting. The sleet having ceased falling, he proceeded westward on United States Highway 54, over which he had not traveled previously. His lights and brakes were in good condition, and the surface of the pavement, which was an 18-foot blotter type, was good. It was very dark. After reaching a point about one mile south of Piqua, and while traveling about 35 miles per hour and not knowing he was approaching a railway crossing, he suddenly observed the side of a bright, shiny refrigerator car not over 35 feet in front, and applied his brakes instantly, and swerved his car. He collided with the train, and was dragged along the right of way for 120 steps. The train was a freight train. He could not say which car he hit, but it was not long until he saw the caboose. It was a long train. He never saw the engine. As his car was being dragged along, he observed the cars ahead of the refrigerator were dark, grimy, dingy-colored, covered with soot and dirt, and that the cars preceding the refrigerator car in the train blended with the darkness of the night and with the color of the surface of the road. After the accident, he examined the crossing for signs, and found a cross-arm sign about 8 feet high (the train cut off his view of this sign at time of accident). There was no electric blinker or other sign there. Back up the highway about 300 feet was a highway crossing marker or sign, which was covered with ice, which he knocked off. It had the black letters RR on a yellow background. At the crossing, the rails were two or three inches lower than the surface of the road. We shall not detail evidence concerning his lights, how far they shone, how far he could see, etc., for such evidence is pertinent only to be considered in connection with a claim of his contributory negligence.

In determining whether the defendants were guilty of negligence it must be borne in mind that the mere fact there was a collision and plaintiff was injured is not of itself sufficient to predicate liability. Zinn v. Updegraff, 113 Kan. 25, 35, 213 P. 816, and see, also, Crowe v. Moore, 144 Kan. 794, 62 P.2d 846. There must be a showing that defendants failed to perform some duty or committed some act that caused plaintiff's injuries. It is not claimed by appellee that the defendants failed in any...