Shepard v. Thompson

• Decision Date: 25 January 1941
• Docket Number: 34987.
• Citation: 109 P.2d 126,153 Kan. 68
• Parties: SHEPARD v. THOMPSON.
• Court: Kansas Supreme Court

109 P.2d 126

153 Kan. 68

SHEPARD v. THOMPSON.

No. 34987.

Supreme Court of Kansas

January 25, 1941

Syllabus by the Court.

In action for death of occupant of automobile resulting from injuries sustained in collision between automobile and train at railroad crossing, jury's finding specifying that the particular negligence of which railroad was guilty was failure to provide adequate warning signs on street absolved railroad from other allegations of negligence contained in the petition.

The purpose of railroad crossing signs or signals is to warn of approaching trains, and not of trains already occupying the crossing. Gen.St.1935, 68-414.

Where train entered street intersection and was visible to occupants of automobile when there was yet time for motorist if he had been using reasonable care to avoid collision, but motorist drove automobile into side of engine "proximate cause" of accident was negligent operation of automobile, regardless of negligence of railroad in failing to provide adequate warning signals at the crossing.

An automobile guest is under duty to exercise reasonable care for his own protection and cannot recover damages if he fails to exercise such precaution and give warning to driver of the automobile of an imminent danger.

Where motorist negligently drove automobile into side of train although train was in plain view and engine had entered intersection while there was time to avoid collision if occupants of automobile had been looking ahead, and although there was nothing in record to indicate that automobile guest could not have seen the train, there was no testimony that guest gave any warning to driver in an effort to avoid the collision, railroad was not liable for the death of guest resulting from injuries sustained in the collision.

1. In an action for damages, predicated upon negligence, a finding by the jury specifying the particular negligence with which the defendant is chargeable absolves the defendant of other acts of negligence alleged in the petition.

2. The purpose of highway signs or signals indicating a railroad crossing is to warn of approaching trains and not of trains already occupying the crossing.

3. A guest riding in an automobile is bound to exercise reasonable care and precaution for his own protection, and to warn the driver of imminent danger apparent to one exercising such care and precaution.

4. An automobile approaching a railroad crossing at eighteen or twenty miles an hour was driven into the side of an engine pulling a passenger train at the rate of fifteen miles an hour, resulting in the death of an occupant of the car. In an action for damages brought by the widow of the deceased, in which the jury found for the plaintiff and gave answers to special questions including a finding that the defendant railroad company was negligent in falling to provide adequate warning signals, the record is examined wherein it appears that the engine had entered the street intersection and the engine and train were easily visible to the occupants of the car when there was yet ample time for the driver of a car using reasonable care and precaution, to avoid a collision and it is held that the proximate cause of the accident was the negligent driving of the auto into the side of the railroad engine, and that the trial court erred in denying defendant's motion for judgment notwithstanding the general verdict for the plaintiff.

Appeal from District Court, Sedgwick County, Division No. 1; Ross McCormick, Judge.

Action by Loretta C. Shepard, as widow and as next friend and natural guardian of Dorothy Shepard and others, minors against Guy A. Thompson, trustee of the Missouri Pacific Railroad Company, for death of an occupant of an automobile which collided with a train. From an adverse judgment, defendant appeals.

Reversed and remanded, with directions to enter judgment for defendant. negligence contained in the petition.

Arnold C. Todd and Kurt Riesen, both of Wichita, and W. P. Waggener, O. P. May, B. P. Waggener, and Ralph M. Hope, all of Atchison, for appellant.

C. A. Matson, I. H. Stearns, and E. P. Villepigue, all of Wichita, for appellee.

HOCH Justice.

This is a railroad crossing case. The husband of the appellee was killed when the car in which he was riding ran into the side of a moving passenger-train engine at a grade crossing in the city of Wichita. Appealing from the judgment against it, the railroad's principal contention is that the collision resulted from the negligence of the deceased and the driver of the car and that upon the jury's answers to special questions judgment should have been entered for the defendant notwithstanding the general verdict for the plaintiff.

The collision took place about 12:15 A. M. on December 4, 1938, where the Missouri Pacific tracks cross Walnut street, several blocks west of the Arkansas river and a block north of Douglas avenue, the main business street of the city. The passenger train was proceeding west on Pearl street and the car involved in the accident was going south on Walnut. The driver and owner of the car, a 1935 Chevrolet coupe, was E. L. Potter. Riding with him were Harold Byerly and Harvey A. Shepard, husband of the appellee. Shepard was seated between Potter and Byerly. The car struck the right side of the engine--described by one of plaintiff's witnesses as "about ten feet from the front of the engine" and by the engineer and fireman as "about fourteen or fifteen feet from the pilot of the engine." After the collision the car was lying on the sidewalk on the west side of the street.

The negligence alleged in the petition consisted of operating the train at a speed of twenty-five miles an hour contrary to a city ordinance which provides a maximum speed of fifteen miles within the city; of failing to blow a whistle or ring a bell or give other warning signal of the approach of the train; of failing to maintain sufficient warning signs at the intersection; and of failing to maintain some kind of electric bell, wigwag or other such warning device--the crossing having, it was alleged, "an extremely dangerous condition and situation surrounding" it.

The answer consisted of a general denial and an allegation that the deceased and the other occupants of the car were guilty of contributory negligence by their failure to stop, look and listen for trains and their failure to use proper care and caution as they approached the crossing.

The jury returned a verdict for the plaintiff in the sum of $6,625 and answered special questions as follows:

1. "Q. If you find for the plaintiff, then state at what rate of speed (a) the automobile approached the crossing; (b) the train approached the crossing. A. (a) 18 to 20 miles per hour. (b) 15 miles per hour.

2. "Q. If you find for the plaintiff, then state whether or not the automobile stopped before going into the train. A. No.

4. "Q. If you find for plaintiff then state whether or not the occupants of the automobile saw the train before it was struck. A. No.

7. "Q. If you find for the plaintiff, then state specifically what, if any, negligence you find against the defendant. A. Failure to provide adequate warning signals.

8. "Q. If you find for plaintiff then state how far east of the crossing could an approaching train have been seen by the deceased. (a) When he was within 20 feet of the middle track.

"A. 2 blocks. (b) When he was within 25 feet of the middle track.

"A. 1 3/4 blocks. (c) When he was within 30 feet of the middle track.

"A. 1 3/4 blocks. (d) When he was within 40 feet of the middle track.

"A. 200 feet. (e) When he was within 50 feet of the middle track.

"A. 100 feet.

9. "Q. If you find for plaintiff then state how far north of the crossing the cross arm sign or signs could be seen by the occupants of an automobile approaching the crossing at night with headlights burning. A. 60 feet.

10. "Q. If you find for plaintiff then state from how far north of the crossing the railroad crossing could be seen by the occupants of an automobile who knew it was there, when approaching the crossing at night with headlights burning or by occupants of an automobile not knowing that the crossing was there when approaching the crossing at night with headlights burning. A. (a) 60 feet. (b) 30 feet."

Brief statement of the facts will suffice. Harvey Shepard was a machinist 38 years of age who had been employed for a number of years by the Federal-Mogul Corporation at 200 North Waco street in Wichita, which is a few blocks from the scene of the collision. He had resided at 1517 South St. Francis street in Wichita for about six years and prior to that he had lived north of Douglas, on North Clark, north of Pearl street. He was familiar with the location of the Missouri Pacific tracks and had crossed them many times. On the evening of December 3, 1938, he came home from work at five o'clock and after supper he and Mr. Byerly joined Mr Potter--a brother-in-law--at a pool hall on west Douglas where they spent the evening playing pool. About 11:15 or 11:30 P. M. they left the pool hall, and went to the Potter car which was parked a block or so away. Potter testified that they drove out west First street and west Second street to go to his home to get some things as he was intending to stay at the Shepard home that night. They turned south on Walnut street which is eighty feet wide with a paved portion thirty feet wide. Walnut is not an arterial highway. Seneca street, the first north and south street west of Walnut, is a through street...