The Missouri v. The Missouri Pacific Railway Company

• Decision Date: 11 May 1918
• Docket Number: No 20,943,20,943
• Court: Kansas Supreme Court
• Parties: THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellee, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant

175 P. 97

103 Kan. 1

THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellee, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant

No 20,943

Supreme Court of Kansas

May 11, 1918

Decided January, 1918.

Appeal from Coffey district court; WILLIAM C. HARRIS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. GRADE CROSSING--Two Railroads--Interpretation of Contract Concerning Gate. A contract between the plaintiff and the defendant relating to the erection, operation, and function of a gate at a grade crossing of their railroads at a station, and the operation of trains over the crossing provided that the normal position of the gate was to be across the plaintiff's track, the purpose being to block the plaintiff's track and allow the defendant's trains to run over the crossing without stopping, except when the gate should be turned across the defendant's track. In that event, the defendant's trains were to respect the signal, and stop. Held, the gate might properly be turned in favor of one of the plaintiff's trains after it arrived at the crossing, and against an on-coming train of the defendant, provided sufficient distance were allowed to give timely warning, by means of the gate, so that the oncoming train could be stopped by the exercise of reasonable care.

2. SAME--Finding--Passenger Train Came to "Full Stop" The contract required the plaintiff's trains to come to a full stop before passing over the crossing. The jury were asked whether or not the passenger train of the plaintiff, run into while on the crossing by the freight train of the defendant, first came to a full stop. The jury answered, "Yes, approximately so." The answer was based on evidence to the effect that the purpose of a full stop was accomplished. Held, the contract was complied with.

3. SAME--"Employees" to Open and Close Gate at Crossing. The contract required "employees" of the plaintiff to open and close the gate. Evidence was introduced to show that "employees" meant trainmen, or a trained signal man. Some evidence to the same effect was rejected. The gate was opened by a hackman, acting under authority of the plaintiff's station agent. Held, it was not material who performed the physical act of manipulating the structure, and in view of special findings showing the gate was turned against the defendant's train in ample time, it was not material what employee of the plaintiff authorized the signal.

4. SAME--Company's Rules--Abrogation. To support its interpretation of the contract, the defendant introduced in evidence a rule of the plaintiff requiring trainmen of the plaintiff to open the gate. Held, evidence of abrogation of the rule by the plaintiff, long before the collision, was properly received.

5. SAME--Interpretation of Company's Rules by Court--Expert Evidence. The plaintiff introduced in evidence a rule of the defendant requiring its trains to approach grade crossings under full control. Evidence offered on behalf of the defendant that full control had a special, technical meaning, as applied to crossings gated normally against a foreign road, was rejected. Ordinarily, rules of this kind, containing no term the meaning of which is not perfectly clear, are to be interpreted by the court. Sometimes genuinely technical expressions are used, and sometimes the practical application of a rule to a particular state of facts may not be clear. In such cases evidence of how those governed by the rule understand it may be helpful. The court must determine in each instance whether it needs any testimonial aid to interpret the word or phrase in dispute.

6. SAME--Rules--Evidence, Not Standard of Duty Rules of the kind referred to are limitations placed by the employer on the conduct of his employees, evidencing what the employer considers proper conduct, and do not establish the legal measure of duty to third persons, which may be greater or less than the rule prescribes.

7. SAME--Trains Approaching Crossing "Under Full Control"--Instruction. The court instructed the jury that trains were required to approach the crossing under proper control, and proper control was defined as such control that the train could be stopped promptly if need arose. Under control, under full control, and under proper control, are all relative and not absolute terms, and as applied to the approach of the defendant's freight train, under the circumstances disclosed by special findings of fact, the instruction was not erroneous.

8. SAME--Special Findings--Liability of Defendant. Special findings of fact considered, and held to be sustained by the evidence, and to fasten responsibility for the collision on the engineer of the freight train.

9. SAME--Settlement by Plaintiff of Personal-injury Claims--Reimbursement by Defendant. The plaintiff paid, for the account of the company at fault, sums of money in settlement of claims for personal injuries arising from the collision, and for other purposes. Held, the letters and telegrams passing between the officials of the two companies authorized the settlements; certain expenditures were incidental to personal-injury claims; the duty of the defendant to reimburse the plaintiff was implied; and the duty arose as soon as settlements were made, so that the sums paid drew interest.

10. SAME--Duty toward Passengers Not Owed to Other Railroad. The duty of the plaintiff to exercise extraordinary care toward its passengers was not owed to the defendant, and the principles governing the liability of a carrier to its passengers do not apply to the accountability of the defendant to the plaintiff.

11. SAME--No Errors in Record. Other claims of error considered, and decided adversely to the defendant.

W. P. Waggener, of Atchison, and J. M. Pleasant, of Burlington, for the appellant; J. M. Challiss, George F. DeLacy, and Walter E. Brown, all of Atchison, of counsel.

W. W. Brown, James W. Reid, both of Parsons, John J. Jones, of Chanute, and Joe Rolston, of Burlington, for the appellee.

OPINION

BURCH, J.:

The action was one to recover sums of money paid for the account of the company at fault, and damages, consequent upon a collision between a passenger train of the plaintiff and a freight train of the defendant. The plaintiff recovered, and the defendant appeals.

The collision occurred at the crossing of the two railroads at the station of Moody, which, with the surroundings, is shown on the appended sketch. The passenger train approached Moody from the northwest. The freight train came from the south, and farther away from the southwest. After the two trains came from behind the hills indicated on the sketch they were visible to each other, and trainmen of each saw the other. The passenger train proceeded to the crossing stop sign, whistled for the crossing, and then proceeded toward the crossing. The crossing is gated, the normal position of the gate being across the plaintiff's track. Before the passenger train reached the crossing the gate was turned across the defendant's track. The passenger train consisted of an engine, a baggage car, a combination mail and passenger coach, and a passenger coach. The usual stopping place is with the mail car on the crossing. When about to stop the engineer of the passenger train perceived the freight train would not be stopped, and made an effort to clear the crossing. The engine of the freight train struck the passenger coach with tremendous force, inflicting much injury to persons and property. After negotiating with the defendant concerning the matter, the plaintiff settled, for the account of the company at fault, death and personal-injury claims, physicians' and surgeons' bills, bills for nursing and for board of the injured, and paid the expenses incident to such settlements. The plaintiff also paid out sums of money to replace and repair equipment and other property destroyed and injured.

The gate was erected under a contract, the material portions of which read as follows:

"The object and purpose of said gate and signal lamp at Moody is to block the track of the party of the first part [M. K. & T.] and to allow the parties of the second part [Mo. Pac.] to run their trains over said crossing without stopping (except when such gate shall be turned against them, in which case they shall respect the signals and stop their trains) but in no event shall any train be run over said crossing at a speed in excess of fifteen miles per hour. The normal position of said gate shall be across and at right angles to the track of the party of the first part, and the trains of the party of the first part shall be brought to a full stop before passing over said crossing, and the employees of said first party shall open the gate before and close the same after the passing of its trains over said crossing."

In this instance the gate was opened in front of the passenger train, and closed in front of the freight train, by Walter Giesy, a hack driver, who acted under the direction of the station agent.

The plaintiff charged the defendant with negligence in respect to the manner in which the freight train was operated, and in other respects not now material. The defendant denied negligence on its part, and charged the plaintiff with negligence in four particulars: first, the passenger train did not come to a full stop before proceeding over the crossing; second, the gate was not operated by one of the plaintiff's agents, servants, or employees; third, the person who did open the gate did not look or listen for a train on the defendant's road; fourth, the plaintiff's engineer proceeded over the crossing without looking or listening for a train on the defendant's road.

The defendant's account of the collision, indicated in its answer and detailed in the testimony of its engineer...