Turner v. St. Louis-San Francisco Railway Company

• Decision Date: 10 April 1920
• Docket Number: 22.597
• Parties: SAMUEL TURNER and BIRDIE TURNER, Appellees, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant
• Court: Kansas Supreme Court

189 P. 376

106 Kan. 591

SAMUEL TURNER and BIRDIE TURNER, Appellees, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant

No. 22.597

Supreme Court of Kansas

April 10, 1920

Decided January, 1920.

Appeal from Cherokee district court; FRANK W. BOSS, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Railroad Crossing--Obstructions--Pleadings--Rulings of Court It was not error to receive testimony under the petition, to overrule the demurrer to the plaintiffs' evidence, or to refuse the defendant's request for an instructed verdict.

2. SAME--Instruction--"Stop, Look and Listen." An instruction touching the duty of the driver of the vehicle in respect to stopping, looking, and listening, held proper.

3. SAME. Certain instructions were properly refused because substantially included in those given by the court.

4. SAME. A charge touching the lateness of the train which it is alleged struck the plaintiff's daughter, held proper.

5. SAME--Condition of Crossing--Findings. The findings as to the condition of the crossing and the striking of the plaintiffs' daughter by the train, held to have been supported by the evidence.

6. SAME--Rejected Evidence--Requested Instructions Refused The refusal to receive in evidence the speed ordinance offered by the plaintiffs, and the refusal of the plaintiffs' requested instruction as to wantonness and last clear chance held not to constitute material error.

7. SAME--Contributory Negligence Fatal to Recovery. Under the settled rule that one cannot recover for an injury caused by his own carelessness, the plaintiffs are barred because the driver crossed the track without stopping to ascertain whether or not a train was approaching.

R. R. Vermillion, and W. F. Lilleston, both of Wichita, for the appellant; W. F. Evans, of St. Louis, Mo., of counsel.

R. E. Rosenstein, of Baxter Springs, Paul MacCaskill, and Charles Stephens, both of Columbus, for the appellees.

OPINION

WEST, J.:

The plaintiffs, Samuel Turner and Birdie Turner, recovered a judgment for $ 2,000 for the alleged negligent killing of their daughter, Geraldine. The defendant appeals, and assigns as error the overruling of an objection to the introduction of evidence under the petition, admitting incompetent evidence, overruling a demurrer to the plaintiffs' evidence, giving and refusing certain instructions, refusing to require the jury to retire and answer a certain question, and denying a new trial.

The plaintiffs in a cross appeal complain of rulings sustaining an objection to a speed ordinance offered by the plaintiffs, and refusing an instruction touching the claim of wantonness and the doctrine of last clear chance.

The injury occurred on South street in Baxter Springs, which street, running east and west, is crossed at right angles by the defendant's main track and a switch track located a few feet east thereof. The crossing was about thirty-three feet wide, and there was much traffic along the street to and from the Pitcher mining region to the west. The defendant's southbound passenger train, due about 7:30 a. m., came through about 8:30 a. m. The plaintiffs lived a short distance east of the crossing where they could see trains passing, and were familiar with the location where the injury occurred.

The petition alleged in substance that the sidetrack was about ten feet east of the main track and parallel with it for several hundred feet north of the crossing; that northeast of the crossing there was a large building about eight feet east of the side track, so that freight cars standing thereon were within about six and a half feet of the main line; that on the 7th of July, 1917, the defendant negligently left standing on this side line a string of freight cars. It was further averred that on this date the crossing was negligently maintained in a rough and irregular condition, and that by reason of the box cars on the sidetrack just west of the building already referred to persons riding in vehicles crossing to the west on the north side of the crossing could not see north along the main track until such vehicles were practically over it; that the defendant negligently failed to keep a watchman or any system of signals to warn persons approaching the crossing from the east of the approach of trains from the north; that it was the defendant's duty to keep an automatic signal system or a watchman there and to keep its sidetrack west of the building clear of cars; that on July 7, 1917, the city attorney had notified the superintendent of the defendant company of the dangerous condition of the crossing, without result. It was alleged also that Baxter Springs had in force an ordinance limiting the speed of trains within the city to six miles an hour, and that for more than a year the company had followed the practice of running its southbound train at a rate of speed not exceeding six miles an hour, and that this practice was notorious and known to the plaintiffs. It was charged that on July 7, 1917, the plaintiff Birdie Turner was driving along South street in a one-horse spring wagon, sitting on the south end of the seat, Geraldine sitting on the north end, and behind them a Mrs. Cox was sitting on a sack of bran; that Birdie Turner could not see any part of the main line because her view was shut off by the building and the defendant's freight cars on the sidetrack, and trees and bushes and other buildings north of the building; that she was in full control of the horse and listening and looking for any train that might be coming, but no whistle or bell was sounded or other warning given, and that when she reached a point where she could see north up the main track her horse was thereon, at which time she saw a train about 100 feet north of the crossing coming at about 25 miles an hour; that at this moment the employees in charge of the train saw her rig in peril, or by the exercise of ordinary care could have so seen, but failed to apply the brakes and reverse the engine as they could and should have done. She alleged that it was impossible to back her horse off the crossing in time to avoid the collision, and the only safe way was to strike him with the lines and hasten his speed, which she did, the rig thereby being missed by the train by three or four inches; that Geraldine was thrown back over the seat in such a way that she rolled out of the vehicle and "was struck on the head by some portion of the west rail of said locomotive," from which falling and stroke she sustained internal injuries and her head was crushed and otherwise so injured that she did not regain consciousness, but died within two hours.

The answer consisted of a general denial and an allegation of contributory negligence of Geraldine and Birdie Turner.

With their general verdict the jury returned answers to a number of questions to the effect that there was no evidence to show whether or not Geraldine looked to ascertain that an engine or cars were approaching; that the occupants of the wagon did not stop to ascertain whether it was safe to proceed; that if Birdie Turner had looked up the main track the box car was there to obstruct her view even if she had so looked when within 12 feet of the main track, and such occupants could not have seen smoke from the approaching engine if they had looked before driving on the main-line track, and that the sidetrack was seven and one-half feet east of the main track at the north side of the crossing--

"2. Do you find that the view of Birdie Turner and Geraldine Turner was obstructed until such time as they were in a position of peril known to defendants. Ans. Yes.

"3. Do you find that, under all the facts and circumstances, the defendant company was, on July 7th, 1917, negligent in running its train at the rate of speed it was running? Ans. Yes.

"4. Do you find that the defendant company, under all the facts and circumstances, was, on July 7th, 1917, negligent in running its train at the speed it was running without having a watchman at said crossing to warn and inform plaintiff and said Geraldine Turner of any danger. Ans. Yes.

"5. Do you find that the roadway was more or less rough and irregular on that crossing at the sides of the plank across the roadway? Ans. Yes.

. . . .

"Q. 10. What, if anything, was there to prevent Birdie Turner or Geraldine Turner from hearing the approaching engine and cars, if they had stopped and listened therefor before driving on the mainline track? Ans. Buildings, box cars and amount of traffic.

"Q. 11. On the occasion in question, was it reasonably necessary, before driving on the main track, to stop the wagon in question, in order to ascertain whether an engine or cars were approaching on said track from the north? Ans. No.

"Q. 4. On the occasion in question, did the engineer apply the brakes as he saw said wagon crossing the main line? Ans. Yes.

. . . .

"Q. 3. If you return a verdict against defendant, please state upon what grounds of negligence, if any, you base your verdict? Ans. On grounds of obstructions and speed of approaching train and rough crossing; no flagman at crossing.

. . . .

"Q. 8. Did any part of the engine or train strike Geraldine Turner on the occasion in question? Ans. Yes."

The overruling of the objection to the introduction of evidence under the petition is not argued in counsel's brief and need not be discussed.

It was not error to overrule the demurrer to the plaintiffs' evidence, but it would have been error to sustain it.

Neither was it error to refuse the defendant's request for an instructed verdict.

Some complaint is made that certain issues covered by the pleadings were submitted to the jury, but no error in this respect appears to have been committed.

The jury were...