St. Louis & San Francisco Railroad Company v. Brock

• Decision Date: 11 January 1902
• Docket Number: 12,412
• Citation: 64 Kan. 90,67 P. 538
• Court: Kansas Supreme Court
• Parties: ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. J. T. BROCK

67 P. 538

64 Kan. 90

ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. J. T. BROCK

No. 12,412

Supreme Court of Kansas

January 11, 1902

Decided January, 1902.

Error from Montgomery district court; A. H. SKIDMORE, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

RAILROADS--Injury at Crossing--Contributory Negligence--Question for Jury. When there is evidence tending to show that a traveler injured by a train at a railroad crossing might have assured his safety by stopping to look and listen better for the approaching train, it is error to refuse an instruction submitting to the jury the question of his obligation to stop.

J. W Gleed, D. E. Palmer, and John L. Hunt, for plaintiff in error.

Clark & Brown, for defendant in error.

DOSTER C. J. JOHNSTON, SMITH, ELLIS, JJ., concurring.

OPINION

DOSTER, C. J.:

This was an action for damages for bodily injuries alleged to have been negligently inflicted on the plaintiff below at the crossing of a railroad-track and a public highway. The plaintiff undertook to drive a team and vehicle over the crossing in front of an approaching train. The engineer of the train neglected to give the required warning signal for the crossing, and the plaintiff's view of the track in the direction from which the train was coming was obstructed. One of the defenses was contributory negligence. There was evidence which tended to show that the plaintiff might have assured his safety by stopping to look and listen better before venturing upon the crossing. The defendant requested the court to give the jury the following as an instruction:

"Where the view of the plaintiff on the highway approaching the crossing of the railroad of the defendant is obstructed so that he cannot see an approaching train until within about fifteen feet of the track, greater care should be exercised by the plaintiff than if no such obstruction existed; and in case you find that the view was so obstructed that he could not have seen an approaching train until within about fifteen feet of the track, then it would be incumbent upon the plaintiff to use greater care than though there were no obstruction; and he should make a vigilant use of his senses to determine whether there is a present danger in crossing. The question as to whether he should have stopped and assured himself that there was no danger is one for you to decide. If you find that he should have stopped, and made sure that there was no danger in crossing, and that he did not take this precaution, then you are instructed that the plaintiff cannot recover and that it is your duty to return a verdict in favor of the defendant."

The request to give the above as an instruction was refused, and there was nothing given in lieu of it. Judgment went for the plaintiff, to reverse which error...