Stamps v. The Missouri Pacific Railroad Company

• Decision Date: 09 June 1923
• Docket Number: 24,515
• Parties: B. C. STAMPS, Appellee, v. THE MISSOURI PACIFIC RAILROAD COMPANY, Appellant
• Court: Kansas Supreme Court

218 P. 1115

113 Kan. 644

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

No. 24,515

Supreme Court of Kansas

June 9, 1923

Decided January, 1923.

Appeal from Sedgwick district court, division No. 3; JESSE D. WALL judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

PERSONAL INJURIES--Collision--Street Car and Railroad Train--Special Findings--Negligence. The proceedings in an action for damages for personal injuries to a street-car motorman, sustained when his car was struck at a street crossing by a passenger train, considered, and held, special findings that the plaintiff, after stopping his car, went far enough ahead to obtain adequate view along the railroad tracks, and was not otherwise guilty of contributory negligence, are sustained by sufficient evidence.

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

BURCH, J.:

The action was one for damages for personal injuries sustained by the plaintiff at a street crossing when the street car which he was operating was struck by one of the defendant's passenger trains. The plaintiff recovered, and the defendant appeals.

Ninth Street in the city of Wichita extends from east to west, and is crossed by the defendant's double-track railroad. The street car approached the crossing from the east, and the train approached from the north, on the west track. Some distance north of the crossing the railroad tracks curved toward the east. When the plaintiff approached the crossing he stopped the street car, went forward, looked for trains, and saw none. He returned to his car, received from the conductor the signal to proceed, and did so. The engine of the passenger train struck the street car midway of its length, and carried it a considerable distance on the pilot.

The negligence pleaded and found by the jury was excessive speed of the train. The jury found it was moving at the rate of twenty miles per hour. The issue relating to the defendant's negligence was well tried, and the result is protested only formally. The defendant does contend, however, the plaintiff was guilty of contributory negligence.

When the plaintiff stopped his car to go forward and look for trains, the front end of the car was twenty-four feet from the second track, the one on which he was struck. From the front of the car the plaintiff's view in the direction from which the train came was unobstructed for a distance of 125 feet. From the intersection of the street-car track with the west railroad track the view was unobstructed for a distance of 700 feet. The precise point at which the plaintiff made his observation for trains was not definitely established. He testified he crossed the first track. The jury found he went far enough to obtain adequate view. Had he gone to the point at...