Torgeson v. The Missouri-Kansas-Texas Railroad Company
| Decision Date | 07 January 1928 |
| Docket Number | 27,750 |
| Citation | 124 Kan. 798,262 P. 564 |
| Parties | WILLIAM TORGESON, Appellee, v. THE MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Appellant |
| Court | Kansas Supreme Court |
Decided January, 1928
Appeal from Geary district court; CASSIUS M. CLARK, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. RAILROADS--Accident at Crossing--Contributory Negligence--Question for Jury. In an action for damages for personal injuries received in a railroad-crossing casualty the question of plaintiff's contributory negligence in view of the facts disclosed by the record was a question for the jury.
2. SAME--Accident at Crossing--Tests Tending to Show Safest Way to Cross Admissible. Testimony of tests made tending to show the safest way for a traveler on the highway to negotiate the railroad crossing was properly received.
3. PLEADING -- Verification -- Pleading Relating to Written Instrument. One injured in a railroad-crossing casualty later signed a writing purporting to state his view of how the casualty occurred. When he sued for damages this writing was set forth as a defense. Held, this did not convert the action or defense into one founded on a written instrument within the meaning of R. S. 60-729. It was proper, if the facts warranted it, for plaintiff to file a reply in the nature of a confession and avoidance to such defense so pleaded.
W. W Brown, C. E. Pile, both of Parsons, and U. S. Weary, of Junction City, for the appellant.
James V. Humphrey, Arthur S. Humphrey, both of Junction City, and Henry Torgeson, of Council Grove, for the appellee.
This is an action for damages for personal injuries sustained in a railroad-crossing casualty alleged to have been caused by the negligence of defendant. The jury answered special questions and returned a general verdict for plaintiff. Defendant has appealed and has argued many points. The real question presented is, Was plaintiff guilty of contributory negligence as a matter of law?
The facts are substantially these: Defendant operates a line of railroad from Junction City south and east through Geary, Morris and other counties. Near the south part of Geary county it intersects a township highway, commonly called the Clark Creek road. From its southerly direction this highway approaches the intersection on an angle twenty-six degrees thirty minutes west of south. It curves on the intersection, leaving it at an angle twenty-eight degrees west of north. The railroad crosses the intersection from northwest to southeast. Just northwest of the intersection it curves around a hill to the west. Southwest of the intersection, beginning a few feet from the railroad track and a short distance west of the highway, there is a natural hill about forty feet high, with steep slopes, especially toward the railroad. Nearly a mile southeast of the intersection is the station of Skiddy. About three miles northwest of the intersection is the station of Olson. The railroad track from Olson to Skiddy is on a down grade of 1.2 per cent. A train started or in motion at Olson will run down this grade on its own momentum without steam power; in fact, it is necessary to apply the brakes occasionally to keep it from running too fast. The maximum safety speed for a train down this grade, considering the curve and the condition of the track, is twenty-seven miles per hour. One approaching this crossing from the south could not see very far up this track to the northwest because of this hill. If he had stopped his car seven feet from the south rail he could not have seen a train on the track approaching the intersection more than 203 feet away. One standing directly in the center of the track at the intersection would be able to see a train approaching from the northwest about 450 feet, and from a point in the highway 35 feet north of the crossing a man standing could see a train approaching from the northwest 800 feet. This was the farthest distance it was possible to see the train from any point on the highway on or near the intersection. At 290 feet west of the intersection is the whistling post for the station of Skiddy, and 1,150 feet west of the intersection is the whistling post for the highway crossing. At the intersection the railroad grade is about six feet higher than the level of the highway. The highway had not been constructed level with the railroad for the distance and in the manner required by the statute. (R. S. 66-227.) There was a grade on the highway to the track of 7.7 per cent from the south side, and on the north of 8 per cent. Plaintiff resided about four miles south of the intersection on a farm, which he and other members of his family operated. He had been a school teacher for many years, and in the fall of 1925 was teaching school in Geary county about a mile north of the intersection in question. He drove from his home to the school and back each day in a Ford touring car. He had taught this school the year before. For about a year and a half prior to the casualty he had crossed the railroad at this intersection twice a day most of the time when school was in session, and was thoroughly familiar with the crossing. The day of the casualty was clear and there was no wind. Plaintiff approached the intersection from the south. As he approached the tracks he looked to his right for a train and saw none. When his car was within about seven feet of the south rail--he had slowed almost to a stop--he looked to the northwest along the track for a train and could see none, and listened and could hear none. He then proceeded to drive across the track, but before getting entirely across his automobile was struck by a train from the northwest and he was seriously injured.
The jury found the defendant was negligent in failing to sound proper warnings and in an improper grading of the highway on the railroad's right of way. While there was evidence to the contrary, there is substantial, competent evidence that no whistle was blown at either of the whistling posts above mentioned, nor the bell rung as warnings for the approach of the train. The fact that the grade on the highway at the intersection had not been established, as provided by statute, is not controverted. The findings of the jury, therefore, settle the question of defendant's negligence.
The question of plaintiff's contributory negligence will now be considered. It will be observed that the situation was such that one coming from the south could not cross this intersection safely if he depended alone on seeing the train. There was evidence that if one were to stop his car when the front wheels were about seven feet south of the rails and go on the track and look for a train, or go to the point thirty-five feet north of the track in the highway and look for the train, and the train should not be in sight when he looked from either position, he could not go back to the car start it and get across the track without being overtaken by the train if it...
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