The Chicago v. Arthur Assman. The Chicago

• Decision Date: 03 July 1908
• Docket Number: 15,524
• Citation: 96 P. 843,78 Kan. 424
• Court: Kansas Supreme Court
• Parties: THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. ARTHUR ASSMAN. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. CARL ASSMAN

96 P. 843

78 Kan. 424

THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. ARTHUR ASSMAN.

THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. CARL ASSMAN

No. 15,524

Supreme Court of Kansas

July 3, 1908

Decided July, 1908.

Error from Marion district court; OSCAR L. MOORE, judge.

STATEMENT.

ARTHUR ASSMAN, while attempting to cross the track of the Chicago Rock Island & Pacific Railway near Tampa with a load of coal drawn by a team of young horses owned by his brother Carl Assman, was struck by a passing freight-train and injured, the team being killed. The brothers each brought an action in the district court of Marion county. By agreement the cases were consolidated for the purpose of trial, and tried together. Arthur recovered $ 700, and Carl $ 315. The railway company brings the case here for review. The company demurred to the evidence, requested the court to direct a verdict in its favor, moved for judgment on the answers to the special questions, and asked for a new trial, all of which were overruled by the court, and these rulings are assigned as error.

The jury answered special questions as follow:

(Special questions submitted by plaintiff.)

"(1) Ques. At the time of the accident did the traveled part of the road leading east from Tampa curve toward the southeast and join the section-line road running north and south just east of Tampa, at a point some distance north of the crossing in question? Ans. Yes.

"(2) Q. If you answer No. 1 'Yes,' state how far from the railroad-crossing in question the curve commenced. A. One hundred and seven feet.

"(3) Q. If you answer question No. 1 'Yes,' state whether plaintiff, just before the accident complained of, stopped looked and listened for a train while driving on this curve. A. Yes.

"(4) Q. If you answer the last question 'Yes,' state whether plaintiff looked and listened for a train after he started on toward the crossing. A. Yes.

"(5) Q. When the train in question passed the switch, was plaintiff looking east? A. Yes.

"(6) Q. Had the plaintiff looked to the west for the train just before he looked to the east? A. Yes.

"(7) Q. Did plaintiff exercise ordinary diligence in approaching the crossing where the accident occurred? A. Yes."

(Special questions submitted by defendant.)

"(1) Ques. Was it moonlight at the time the plaintiff met with the accident? Ans. Yes.

"(2) Q. Was the headlight of the engine burning at the time of the accident? A. Yes.

"(3) Q. Did the plaintiff drive the team toward the crossing at a rapid walk? A. Yes.

"(4) Q. What kind of a train was the one which struck the team--freight or passenger? A. Freight.

"(5) Q. How far was the engine of the train from the crossing when it was first seen by the plaintiff? A. About 150 feet.

"(6) Q. Was the team which was driven by the plaintiff on the crossing at the time the train was first seen by the plaintiff? A. Yes.

"(7) Q. Did the train crew in charge of the engine which struck the team sound the whistle of the engine near the whistling-post west of the station of Tampa? A. Yes.

"(8) Q. At what rate of speed was the train running as it approached the crossing? A. Fifty or sixty miles per hour.

"(9) Q. In what distance was the train stopped after the engineer saw Arthur Assman driving toward the crossing and after he applied the braking appliances on the engine? A. About one-half mile.

"(10) Q. Under the circumstances and conditions existing at the time, could the train have been stopped in this distance if it had been running more than thirty or thirty-five miles an hour as it approached the crossing? A. Yes.

"(11) Q. Was the plaintiff, Arthur Assman, looking toward the east at the time the team jumped forward? A. Yes.

"(12) Q. If you answer the preceding question in the affirmative then state whether Arthur Assman had looked toward the west to discover the possible approach of trains prior to this time. A. Yes.

"(13) Q. If you answer the preceding question in the affirmative, then state where Arthur Assman was with reference to the distance from the crossing at the time he looked toward the west prior to the time he was looking toward the east when his team jumped forward. A. Twenty-five feet north of the crossing.

"(14) Q. Did the plaintiff, Arthur Assman, stop for the purpose of looking and listening for trains as he approached the crossing? A. Yes.

"(15) Q. If you answer the preceding question in the affirmative, then state how far the place where he stopped was from the crossing. A. Fifty feet.

"(16) Q. From the place where the plaintiff, Arthur Assman, stopped, up to the crossing, was there anything on the right of way which obstructed the view of the main track to the west? A. Yes.

"(17) Q. If you answer the preceding question in the affirmative, then state what obstructed the view of the main track to the west. A. Box cars, trees, and section-house.

"(18) Q. What is the distance from the culvert north of the crossing to the crossing? A. Nineteen feet.

"(19) Q. What is the distance from the crossing to the switch-stand or target where the house-track begins? A. Two hundred and forty-four feet.

"(20) Q. What is the distance from the switch-stand or target where the house-track begins to the point west of it where the south rail of the house-track switch leaves the space between the rails of the main track? A. Eighty-one feet.

"(21) Q. What is the distance from the point where the south rail of the house-track switch leaves the space between the rails of the main track westward to a point on the north rail of the main track opposite the east end of a box car so placed on the house-track that it will just clear the main line and allow safe operation of trains on the main line? A. About six feet.

"(22) Q. How much clearance must there be between the north rail of the main track and a car standing on the house-track to allow safe operation of trains on the main track? A. Forty-six inches.

"(23) Q. Standing in the highway twenty-seven feet from the crossing, how far can a traveler see up the track to the west, if there are box cars on the house-track which just clear the main line? A. About 340 feet.

"(24) Q. Standing in the highway twenty-one feet from the crossing, how far can a traveler see up the track to the west, if there are box cars on the house-track which just clear the main line? A. About 400 feet.

"(25) Q. Standing in the highway eighteen feet from the crossing, how far can a traveler see up the track to the west and see the engine of an approaching train, if there are box cars on the house-track which just clear the main line? A. About 450 feet.

"(26) Q. How far to the west of the crossing is the main line perfectly straight? A. About two miles.

"(27) Q. How far to the east of the crossing is the main line perfectly straight? A. About one and one-half miles."

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS--Injury at a Crossing--Contributory Negligence. The particular acts of care and vigilance required of a traveler when about to cross a railroad track at a public crossing will depend in a large measure upon the facts connected with the particular crossing. If he exercises ordinary care and vigilance to avoid injury he will not be barred of recovery on account of contributory negligence.

2. RAILROADS--Contributory Negligence. The facts of this case examined, and held, that the party injured was not guilty of contributory negligence.

M. A. Low, and Paul E. Walker, for plaintiff in error.

W. H. Carpenter, for defendants in error.

GRAVES J. JOHNSTON, C. J. MASON, SMITH, BENSON, JJ., concurring. PORTER, J., dissenting.

OPINION

GRAVES, J.:

While the face of the record and the requests for instructions made by the railway company show that it denies the negligence imputed to it, yet in the argument this point is not seriously contested. It may therefore be assumed that the railway company was guilty of negligence by failing to sound a whistle or bell while passing through the town and when approaching the crossing where the accident in question occurred. The real controversy arises, therefore, upon the question whether or not Arthur Assman was guilty of contributory negligence which bars a recovery.

The time when the train arrived at the crossing was about 9 o'clock on a moonlight night in August. There was a mill near the crossing in operation, which would to some extent deaden the sound of an approaching train. Assman was driving a team of young horses, and hauling a load of coal. He was seated in a spring-seat, which was on the top of double sideboards. He expected a train. He was familiar with the...