Waits v. St. Louis-San Francisco Ry. Co., LOUIS-SAN

• Decision Date: 25 January 1975
• Docket Number: No. 47527,LOUIS-SAN,47527
• Citation: 216 Kan. 160,531 P.2d 22
• Parties: J. R. WAITS et al., Appellees, v. ST.FRANCISCO RAILWAY COMPANY, Appellant.
• Court: Kansas Supreme Court

Page 22

531 P.2d 22

216 Kan. 160

J. R. WAITS et al., Appellees, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.

No. 47527.

Supreme Court of Kansas.

Jan. 25, 1975.

Syllabus by the Court

1. The record in actions for wrongful death arising out of a collision between an automobile, in which the plaintiffs' decedents were passengers, and a freight train at a railroad crossing with a county highway is reviewed, and it is held: (1) There was substantial competent evidence that the railroad crossing was unusually dangerous; (2) the trial court did not err in instructing that railroad crossbuck signs shall be erected on the right-hand side of each approach to the railroad crossing; and (3) the issue of proximate cause was properly left to the jury.

2. Whether a railroad crossing is more than ordinarily dangerous is generally a question of fact, although the sufficiency of the evidence to establish that fact remains a question of law. (Following Sexsmith v. Union Pacific Railroad Co., 209 Kan. 99, 495 P.2d 930.)

3. Where unusually dangerous conditions prevail at a railroad crossing the unusual hazard may make additional warnings and precautions by the railroad company necessary. (Following Sexsmith v. Union Pacific Railroad Co., 209 Kan. 99, 495 P.2d 930.)

4. A railroad company may be liable for injury received by a motorist colliding with a railroad car on a crossing where normal headlights do not reveal the obstruction or where a trap is created by an illusion of safety by the headlights.

5. An illusion of safety is created where evidence shows that a dark railroad car on the crossing will absorb a considerable portion of the light rays of an automobile which strike it, and that a large portion of the rays which are actually reflected will travel in various directions, so that only a relatively small portion of the rays will register on the eyes of the motorist.

6. The perceptibility of a train occupying a railroad crossing is an important element in the general rule which requires a motorist to observe the presence of a train occupying a railroad crossing as adequate notice or warning of its presence.

7. The negligence of the driver of an automobile is not imputed to the passengers.

8. Where a deceased person has lost his life in an accident it may be presumed, in the absence of evidence to the contrary, that he was at such time exercising due care for his own safety because of the love of life, which is normal to persons generally.

9. Contributory negligence is never presumed, but must be established by proof.

10. Kansas law requires that railroad crossbuck signs shall be erected on the right-hand side on the roadway on each approach to the railroad crossing, construing K.S.A. 66-2,121.

11. With the adoption of the Manual on Uniform Traffic Control Devices for Streets and Highways by the State Highway Commission pursuant to legislative authorization, these regulations have the force and effect of law.

12. The adoption by the State Highway Commission of the 'Manual on Uniform Traffic Control Devices for Streets and Highways' imposes the obligation of uniformity set forth therein throughout the State of Kansas on its roads and highways.

Glenn D. Young, Jr., Cott, Hope, Gott & Young, P.A., Wichita, argued the cause, and William A. Wells, Wichita, was with him on the brief for appellant.

Patrick F. Kelly, Render, Kamas & Kelly, Wichita, argued the cause, and Donald E. Lambdin, of Coombs, Lambdin, Kluge & Garrity, Chartered, Wichita, was with him on the brief for appellees.

SCHROEDER, Justice:

There are consolidated actions for wrongful death arising out of a collision between an automobile in which the plaintiffs' decedents were passengers and a freight train. The jury rendered a verdict in favor of the plaintiffs, and the railroad has duly perfected an appeal.

The principal points on appeal concern whether there was substantial competent evidence that the railroad crossing was unusually dangerous; whether the trial court erred in instructing that railroad crossbuck signs shall be erected on the right-hand side of each approach to the crossing; and whether the trial court erred in failing to rule as a matter of law on the issue of proximate cause.

The accident in question occurred on June 3, 1971, at the intersection of railroad tracks belonging to and maintained by St. Louis-San Francisco Railway Company (defendant-appellee, hereinafter referred to as Frisco) and Greenwich Road, located northeast of Wichita, Kansas. The decedents, Debrah K. Waits and Franklin D Bedigrew and three other persons were passengers in a 1967 Pontiac, owned and apparently driven by Randall L. Wells, and were proceeding north on Greenwich Road. At approximately 9:06 p. m. Central Daylight Savings Time, the Wells vehicle struck the side of an eastbound Frisco freight train (train No. 330) and all occupants of the automobile were killed. The point of impact was approximately 350 feet back of the lead engine at a coupling between the fourth and fifth freight cars. At the time of impact the emergency braking system of the train automatically became operative.

The evidence disclosed that Greenwich Road is a county road paved with blacktop which runs north and south and intersects Frisco's tracks at right angles. An entrance to Beech Aircraft property is located near the intersection in question. The posted speed limit at the time of the accident was 55 m. p. h. Both the tracks and the road are straight and level in the area of the crossing. The crossing is located just outside the city limits of Wichita to the northeast. The only warning sign maintained by Frisco at the crossing in question was a crossbuck located on the northwest corner of the intersection. The location of the crossbuck was such that it could not be seeen by persons approaching from the south when a train was occupying the crossing. A standard yellow and black highway railroad crossing sign was located 475 feet south of the crossing on the right side of the road for traffic approaching the crossing. This sign was erected and maintained by the county road authority.

The conditions of light which existed at the time of the collision were disputed. Sunset occurred at 8:47 p. m. on June 3, 1971. Climatological records showed that at the time of the accident there was 80% cloud cover.

The patrolman of the Sedgwick County Sheriff's Department in charge of the investigation of the accident was J. B. Peters. Peters received a call concerning the accident at 9:12 p. m. when he was patrolling in a section of northeast Wichita. He immediately departed for the scene of the collision, and testified that he turned on his headlights because it was too dark to drive without them. Peters arrived at the scene at 9:19 p. m. and, according to him, visibility was such that lights were necessary. As to the visibility, Peters further testified that under the light conditions as he recalled them, he could not see the train on the tracks from a distance of 500 feet. From a distance of 200 feet he could see the illuminated caboose which was on the west edge of the crossing, however, he did not think he would have been able to see the fourth or fifth freight cars because they were not illuminated.

Peters further testified that as one proceeds north on Greenwich Road at a point 556 feet south of the crossing there is a line of shrubbery and small trees running along private property adjacent to the road which obstructs vision to the northwest, and that at approximately 475 feet south of the crossing there were more shrubs and small trees, etc. The witness identified several photographs showing intermittent obstruction of vision to the northwest when one approaches the crossing. Peters' measurements indicated the Wells automobile laid down 110 feet of skid marks, and the remnants of the vehicle came to rest 130 feet off the edge of the roadway.

The Sedgwick County Sheriff, Johnnie Darr, arrived on the scene of the accident about 9:15 p. m. He testified the light conditions were bad that night and that it was a dark night. Darr further testified that a very short time after the June 3 accident under weather, shrubbery and lighting conditions the same as the night of the accident, he personally tested the visibility from a vehicle 470 feet south of the corssing when a Frisco train was passing on the crossing and that he could not see the train from that point, but that he could see the train from a distance of 200 feet with his bright headlights in use. According to the opinion of Darr with 110 feet of skid marks on the highway the driver of the vehicle started for the brakes 164 feet back of the crossing. He acknowledged that perception time precedes reaction time.

The Wichita City Traffic Engineer, Paul Graves, testified on behalf of the appellees. Graves stated that it is the responsibility of the railroads to place crossbuck signs, signals and gates at the crossings. The witness testified that in determining standards applicable to maintaining a crossing it is necessary to look to the Uniform Manual on Traffic Control Devices for Streets and Highways, which has been adopted in Kansas by the State Highway Commission. Graves read from a section of the manual which provides in substance that a crossbuck sign shall be erected on the right-hand side of the roadway on each approach to the crossing, and that the sign shall be placed within a specified distance from the road.

At the appellees' request Mr. Graves investigated the Greenwich crossing. His observations were that there are no railroad crossing lights, flashing lights or street lights at the crossing and that as one travels north on Greenwich Road approaching the crossing there is a line of trees and shrubs which makes it impossible to see across the southwest quadrant of the crossing. He further stated that in determining the time and distance necessary for a person to stop one consideration is the...