The Atchison v. Holland

• Decision Date: 11 February 1899
• Docket Number: 11053
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. LOU HOLLAND

56 P. 6

60 Kan. 209

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. LOU HOLLAND

No. 11053

Supreme Court of Kansas

February 11, 1899

Decided January, 1899.

Error from Cowley district court; J. A. BURNETTE, judge.

Judgment reversed and cause remanded.

A. A Hurd, W. Littlefield, and O. J. Wood, for plaintiff in error.

Madden & Buckman, for defendant in error.

OPINION

JOHNSTON, J.:

Lou Holland collided with a locomotive and passenger-train of the Atchison, Topeka & Santa Fe Railroad Company at a railroad and highway crossing, and she seeks to recover for the injury sustained. The case was before the court in Railroad Co. v. Holland, 58 Kan. 317, 49 P. 71, when a judgment in her favor was reversed because some of the findings of the jury were held to be contrary to the evidence and inconsistent with each other. The case having been remanded, another trial was had, which again resulted in a verdict against the company, and with it were returned special findings of fact. There is complaint, and not without cause, that some of the findings were made without due regard to the evidence, and, further, that they are in conflict with one another. Without stopping to investigate the merits of this complaint, we pass to the consideration of the claim that the failure of the plaintiff to look for a train when she approached and was about to pass over the crossing bars a recovery. The negligence alleged against the company was the failure of those in charge of the train to sound the whistle eighty rods from the crossing, or to give any warning of the approach of the train to the crossing. Although some of her own witnesses testified that signals were given, others stated that the train approached the crossing without signal or warning of any kind, and under this testimony and the finding of the jury we must assume that the negligence of the company is established.

As to the care exercised by the plaintiff the facts are not in dispute. It is conceded that she had lived in the vicinity of the crossing for twelve years and was familiar with the surroundings. The collision occurred on a bright, clear day, when she was returning to her home from Winfield. She was driving a gentle horse, attached to a top buggy, but the top of the same was down, and when she was about to cross the track there was nothing to obscure the view or prevent her from seeing the approaching train at any point within 525 yards of the crossing. She knew the train was due and had not passed. She had in mind the coming of the train, and knew that it would not stop at the station of Hackney, which was near the crossing. She kept a lookout for the train as she traveled from the store, across the switch and over to a highway which parallels the track, but did not look for the train while traveling down this parallel road for a distance of thirty-seven yards, nor when she arrived at the crossing. On the former trial there was testimony tending to show that she kept a lookout while traveling along the parallel road and before she entered upon the crossing, but at the last trial she expressly stated that she did not look for the train at any time after she reached the parallel road.

Among other findings, the jury state that she knew when the regular train was due, was familiar with the crossing, and could have seen an approaching train just prior to the time she attempted to cross the track if she had looked. It was also found that if the plaintiff had looked for the train during the last seventy-five feet before she drove on the crossing she could have seen it in time to have avoided the disaster, and that if she had stopped her buggy and looked for it during the last 100 feet before she drove on the crossing she could have seen the train. There is also a finding that she knew that the train was likely to come from the north at any time while she was driving the last 100 feet before reaching the crossing, and that she drove on without turning her face toward the back of the buggy for the purpose of looking for the train that was following her. In this connection the jury found that she could not obtain a view of the track without stopping her vehicle, and in answer to a question as to whether she could see the train when she was about to cross, the jury answered: "No; not without neglecting her horse." In view of the testimony that the horse was gentle, moving along on a jog-trot, at the rate of five miles an hour, with nothing to excite either horse or driver, that the top of the buggy was down, and that there was nothing to obstruct the view or prevent her from seeing the train if she had looked over her shoulder, these findings were little less than absurd, and, like the one finding that she was wantonly run down by those in charge of the train, were without support.

In answer to other questions, the jury expressly found that if she had looked up the track just before going upon the crossing, or while traveling the last thirty-seven yards of the parallel road, she would have seen the approaching train. Although finding that she did not look while traveling that distance, or when she was about to cross, and that she could have avoided the collision if she had looked, the jury found that she was not negligent, and that she exercised due care and prudence in approaching the crossing as she did. These findings, together with the undisputed facts, present the bald question whether a traveler who is expecting a train, approaches the railroad-crossing, having looked for a train when thirty-seven yards away, and then travels the last thirty-seven yards of the highway without looking along the track, does not look when she is about to cross the railroad, when by looking she could have seen the train and avoided the injury, is guilty of contributory negligence.

The standard of duty of the traveler as measured by the law in such cases is well established, and has been frequently stated by this and other courts. In U. P. Rly. Co. v. Adams, 33 Kan. 427, 6 P. 529, it was said:

"It is the duty of a traveler upon a highway about to cross a railroad-track to make a diligent use of his senses in order to ascertain whether there is...