Whatley v. The Chicago Great Western Railroad Company

• Decision Date: 12 March 1927
• Docket Number: 27,239
• Citation: 123 Kan. 187,253 P. 1096
• Parties: ALBERT L. WHATLEY, Appellee, v. THE CHICAGO GREAT WESTERN RAILROAD COMPANY, Appellant
• Court: Kansas Supreme Court

253 P. 1096

123 Kan. 187

ALBERT L. WHATLEY, Appellee, v. THE CHICAGO GREAT WESTERN RAILROAD COMPANY, Appellant

No. 27,239

Supreme Court of Kansas

March 12, 1927

Decided January, 1927.

Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS--Accident at Crossing--Evidence. The evidence is held to sustain a verdict for the plaintiff in a railroad crossing collision case.

2. SAME--Accident at Crossing--Negligence--Misunderstanding Signal. An instruction is held proper to the effect that one whose horse and wagon were struck by a freight car as he was undertaking to drive across a railroad track was not as a matter of law guilty of negligence because he acted upon a signal which was not intended for him, but which was given in such a manner that a person of ordinary care and prudence in his situation would have understood it as a signal for him to proceed across the track.

3. SAME--Accident at Crossing--Negligence as Matter of Law. A requested instruction that a driver in the situation stated in the foregoing paragraph was negligent as a matter of law if after being stopped by a flag he undertook to drive across the track without a signal, was properly refused because of disregarding the hypothesis of his having mistaken a signal to an engineer for one intended for him.

4. SAME--Last Clear Chance--Pleading. It is held that the giving of an instruction on the doctrine of the "last clear chance" was not erroneous, although the facts to which it was applicable had not been fully pleaded.

5. SAME--Amount of Verdict. The judgment is held not to have been so large as to require a reversal.

6. NEW TRIAL--Overruling Motion. The claim that the motion for a new trial was overruled pro forma is not supported by the record.

Charles T. Meuser, of Paola, A. L. Berger, of Kansas City, and Walter H. Jacobs, of Chicago, Ill., for the appellant.

George H. West and P. W. Croker, both of Kansas City, for the appellee.

OPINION

MASON, J.:

Albert L. Whatley undertook to drive in a wagon drawn by a horse across five parallel railroad tracks crossing a street. A freight car in the course of a flying switch struck his horse and wagon. He brought this action against the Chicago Great Western Railroad Company to recover for injuries to himself and his property. Judgment was rendered in his favor, and the defendant appeals.

1. The defendant contends the evidence did not warrant submitting the case to the jury, because it clearly showed the plaintiff to have been guilty of negligence in driving upon the track while the car was approaching. The plaintiff testified, however, that as he approached the first track a flagman gave him a signal to stop; that he did so and waited about five minutes; that after an engine and cars which he had seen approaching had passed over, he received from the switchman who was giving the signals a signal to come on; and that he started up in reliance on the signal and was struck at the third track. While there was much evidence tending to contradict the plaintiff's story, the jury and trial judge must be regarded as having settled in his favor the disputed questions of fact, and if, as he testified, he undertook to cross in obedience to a signal, he obviously was not...