Tarter v. Missouri-Kansas-Texas Railroad Company
| Decision Date | 10 October 1925 |
| Docket Number | 26,095 |
| Citation | 119 Kan. 365,239 P. 754 |
| Parties | EDWARD TARTER, Appellee, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Appellant |
| Court | Kansas Supreme Court |
Decided July, 1925.
Appeal from Cherokee district court; FRANK W. Boss, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
NEGLIGENCE--Doctrine of Last Clear Chance--Use of Diligence--Question for Jury. The last-clear-chance doctrine which makes the defendant liable for injury to the plaintiff where the defendant saw or should have seen the peril of the plaintiff and by the exercise of due diligence could have avoided injuring him notwithstanding the fact that the plaintiff through his own negligence placed himself in a position of danger from which he could not extricate himself, is a rule of law; but whether or not the defendant by the use of reasonable diligence could have avoided the injury to the plaintiff is a question of fact to be determined by the jury.
W. W. Brown, C. E. Pile, both of Parsons, and Don H. Elleman, of Columbus, for the appellant.
Frank E. Dresia and Charles Stephens, both of Columbus, for the appellee.
The plaintiff brought this action to recover damages to his automobile caused by being pushed against a post by a freight train operated by the defendant. Judgment was rendered for the plaintiff, and the defendant appeals.
The evidence tended to show that on August 3, 1923, about 11:30 p. m., the plaintiff in his automobile, which his wife was driving, approached the railroad tracks of the defendant from the west on one of the principal streets of Columbus, where there was heavy traffic at the time; that the plaintiff and his wife were somewhat blinded by the lights of approaching automobiles; that the railroad tracks ran north and south; that both the plaintiff and his wife saw some box cars, which they believed were standing still, to the left or on the north, on the main track; that they then looked south or to the right for any train which might be approaching from that direction; that upon again looking to the left they saw the train of box cars approaching so close a collision could not be avoided; that both the train and the automobile were moving slowly; that the occupants of the automobile jumped out; that the end box car struck the automobile and pushed it down the track from forty to sixty feet, where it was crushed against a signal post; that the automobile was not materially injured until it was pushed against the post; that neither the plaintiff nor his wife saw any flagman at the crossing nor any of the trainmen before the accident; that after the brakes were applied at the engine, the train could have been stopped in twenty-five to twenty-eight feet; and that the train stopped at the signal post, which was forty-five feet south of the center line of the street.
The defendant's evidence tended to show that the second brakeman stood in the middle of the street with a lighted lantern to warn and stop approaching automobiles; that he had stopped one or two on each side of the track before plaintiff's car approached; that the conductor of the train was on top the end car, the one which struck the automobile; that when the train started across the street he saw plaintiff's automobile and signaled a violent stop to the head brakeman, whom he had stationed about two cars from the engine and who at once relayed the signal to the engineer; that the engineer immediately shut off the steam and applied the brakes in emergency; and that from six to eight seconds would be required to transmit the signals and to apply the brakes.
The court instructed the jury, in part, as follows:
"You are instructed that plaintiff cannot recover for any damage to said automobile caused by the original impact or collision, as this was the result of plaintiff's negligence; but defendant is liable, if at all, only for such damage as was caused by its own negligence, if any, occurring after it knew or should have known of the position of danger in which said automobile was placed."
The jury returned a verdict for the plaintiff for $ 500 and answered the following special questions:
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