Springer v. The Chicago Great Western Railroad Company

• Citation: 95 Kan. 408,148 P. 611
• Decision Date: 08 May 1915
• Docket Number: 19,443
• Parties: MYRTLE B. SPRINGER, as Executrix, etc., Appellee, v. THE CHICAGO GREAT WESTERN RAILROAD COMPANY, Appellant
• Court: United States State Supreme Court of Kansas

148 P. 611

95 Kan. 408

MYRTLE B. SPRINGER, as Executrix, etc., Appellee, v. THE CHICAGO GREAT WESTERN RAILROAD COMPANY, Appellant

No. 19,443

Supreme Court of Kansas

May 8, 1915

Decided. January, 1915.

Appeal from Leavenworth district court; JAMES H. WENDORFF, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PERSONAL INJURIES--Railroad Crossing--Negligence as Found by the Jury. Where the jury in a personal-injury case are asked to state in what respect the defendant was negligent, and in answer refer only to a single matter, this does not preclude another form of negligence, the existence of which they had already specifically found, being relied upon to support a verdict for the plaintiff.

2. SAME--Negligence of Brakeman After He Saw Decedent's Danger. Where an automobile collides with the rear end of a freight train, and is pushed for a considerable distance along the track and then overturned, an occupant being run over and killed, the railroad company is liable for the death, notwithstanding any negligence of the decedent prior to the collision, if its employees could by exercising reasonable care, after becoming aware of the danger, have stopped the train before the overturning of the automobile.

John Barton Payne, of Chicago, Ill., and William W. Hooper, of Leavenworth, for the appellant.

Floyd E. Harper, and L. H. Wulfekuhler, both of Leavenworth, for the appellee.

OPINION

MASON J.

Edward S. Springer lost his life as the result of a collision between an automobile in which he was riding and a Chicago Great Western Railroad freight train. His widow recovered a judgment against the company, and it appeals.

The jury found that as the automobile approached the railroad track none of its occupants took any precaution to ascertain whether a train was approaching. The defendant maintains that the accident would not have occurred except for the negligence of the decedent. We shall assume that this is true, and that the judgment can only be sustained on the theory that the circumstances were such as to render the defendant liable notwithstanding that fact. The jury were asked of what negligence they found the defendant guilty, and in reply named only its failure to comply with a city ordinance requiring it to keep a flagman at the crossing where the accident occurred. This would ordinarily be interpreted as a finding in favor of the defendant as to the other forms of negligence alleged. But a negative answer had already been returned to the question: "Did not the brakeman on the hind end of the car apply the air brakes as soon as he discovered that there was danger of the automobile and train colliding?" The principal negligence charged in the petition and referred to in the instructions was the delay in stopping the train after the brakeman became aware of the peril to which the occupants of the automobile were exposed. In view of this fact the answer to the question just quoted must be regarded as a finding that the company was negligent in not stopping the train sooner, and the subsequent statement that the negligence of the defendant consisted in not providing a flagman must be interpreted as designating the additional respect in which it was negligent. This construction is in accordance with the practice of giving to the findings of a jury the meaning intended, however unskillfully expressed. (...