Stamps v. The Missouri Pacific Railroad Company

• Decision Date: 10 October 1923
• Docket Number: 25,453
• Parties: B. C. STAMPS, Appellee, v. THE MISSOURI PACIFIC RAILROAD COMPANY, Appellant
• Court: Kansas Supreme Court

218 P. 1115

114 Kan. 477

B. C. STAMPS, Appellee, v. THE MISSOURI PACIFIC RAILROAD COMPANY, Appellant

No. 25,453

Supreme Court of Kansas

October 10, 1923

Decided July, 1923.

Appeal from Sedgwick district court, division No. 3; JESSE D. WALL judge. Opinion denying a rehearing filed October 10, 1923. (For original opinion of affirmance see 113 Kan. 644.)

Rehearing denied.

SYLLABUS

SYLLABUS BY THE COURT.

1. PERSONAL INJURIES--Collision Between Street Car and Railroad Train--Contributory Negligence Question for Jury. The motorman of a street car about to cross a railroad track, stopped the car, went far enough ahead of the car to obtain adequate view around a curve in the railroad track to determine it was safe to cross, and attempted to do so, when the car was struck by a train, moving at a speed of twenty miles per hour. The circumstances were such the motorman was required to anticipate a train might approach at a speed of twelve miles per hour. He was not required to anticipate a train might approach at a speed of twenty miles per hour, and if the train had not been moving at an excessive rate of speed, he could have crossed the track in safety. Held, he was not guilty of contributory negligence as a matter of law for not continuing to look for a train after determining it was safe to cross.

2. SAME--Partial Payments as Compensation Accepted from Employer--Workman Not Estopped to Sue Wrongdoer for Damages. Plaintiff's employer paid him compensation for a period of six months. Within that period plaintiff commenced action for damages against defendant and, when payments of compensation ceased, commenced compensation proceedings against his employer, who consented to arbitration, which has not been had. Held, acceptance of payments by way of compensation, the amount of which has not been ascertained, did not estop plaintiff from prosecuting his action for damages.

W. P. Waggener, J. M. Challis, both of Atchison, and O. H. Bentley, of Wichita, for the appellant.

John W. Adams, and William J. Wertz, both of Wichita, for the appellee.

OPINION OPINION DENYING REHEARING.

BURCH, J.:

A petition for rehearing has been filed expressing dissatisfaction with the manner in which the defense of election of remedy by acceptance of compensation was disposed of. Perhaps the opinion was too much abbreviated, but the court was under the impression application of the decision in the case of Swader v. Flour Mills Co., 103 Kan. 378, 176 P. 143, was plain enough not to require elaboration.

Plaintiff's employer paid him compensation for the period of six months, in the sum of $ 394.24, and then desisted. Dates are not given, but defendant says this action was commenced within that period and when payments of compensation ceased plaintiff commenced proceedings against his employer. A petition was filed praying compensation in the sum of $ 2,270, and requesting arbitration. The employer consented to arbitration, and there that proceeding rests.

The employer could not fix amount of compensation by making a few payments which the workman accepted, and compensation has not been ascertained, settled, or provided for by agreement, arbitration, action, or conduct of the parties. The statutory election is not between proceedings, but between compensation, agreed to or established, and damages. The workman can receive but one satisfaction. This was plainly stated in the cited case. But, as the court held, he is not required to elect until he knows definitely which source of recompense for his injury is more advantageous. Meanwhile, it is of no concern to the wrongdoer that some payments are made and accepted by way of compensation. His liability for damages is not abated and, should the workman recover and receive compensation in full, the liability subsists in favor of the person paying the compensation, who, by express terms of the statute, is subrogated to the workman's right to damages, to the extent of compensation paid.

The petition for rehearing contains the following:

"We are unable to see the logic or force of the statement of the court that, if the train had not been moving at such an excessive rate of speed, the street car would have been off the track and out of danger before the train arrived. Quite true. Also, if the street car had remained in the barn that morning, it would not have been hit, or if the passenger train had been an hour behind time, the collision would not have occurred."

Perhaps the following will make the matter comprehensible. The car was not in the barn, but was in service, and was obliged to cross the railroad tracks. The train was not an hour behind time, but when plaintiff approached the railroad tracks he did not know just where it was, or whether he had time to cross in safety. The train did come around a curve and strike the car. Before crossing, plaintiff stopped his car, went ahead of it far enough to obtain adequate view of the tracks to determine whether it was safe to cross, and could see no train. If he had gone considerably further, he could not have seen the train--it was too far away. From the observation he made, he concluded he could cross in safety, and attempted to do so. In determining whether it was safe to cross, he was not required to take into account approach of a train at an excessive rate of speed. The fact was, he could have crossed in safety in front of a train not in sight when he looked, which was running at any reasonable rate of speed. If the train had not been moving at an excessive rate of speed, his car would have been across the tracks and out of danger before the train arrived. The logic of the matter is, defendant's negligence was the cause of the collision, and the force of it is, defendant will be obliged to pay the judgment.

The petition for rehearing contains the following:

"Neither can we see the applicability of the statement of the court to the effect that 'there was no testimony that ...