Williams v. St. Louis-San Francisco Railway Company

• Decision Date: 08 January 1927
• Docket Number: 26,946
• Citation: 252 P. 470,122 Kan. 256
• Parties: H. R. WILLIAMS, Appellee, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant
• Court: Kansas Supreme Court

252 P. 470

122 Kan. 256

H. R. WILLIAMS, Appellee, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant

No. 26,946

Supreme Court of Kansas

January 8, 1927

Decided January, 1927.

Appeal from Crawford district court, division No. 1; DANIEL H WOOLLEY, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS--Accident at Crossing--Contributory Negligence--Judgment Notwithstanding General Verdict. In a railroad crossing accident case, judgment should be rendered in favor of the defendant notwithstanding a verdict in favor of the plaintiff where the answers to special questions show that although the plaintiff had a clear and unobstructed view of the railroad track for a sufficient distance to have enabled him to see an approaching train in ample time to have stopped his automobile before going on the track, he drove onto the railroad track and was there struck by the approaching train.

2. SAME--Accident at Crossing--Last Clear Chance--Continuing Contributory Negligence. In a railroad crossing accident case, the principle of last clear chance cannot be applied under the circumstances described in the first paragraph of this syllabus, where the plaintiff did not make any effort to stop his automobile before going on the railroad track, and there was nothing to indicate to the trainmen that the plaintiff was in a place of danger from which he could not extricate himself until it was too late to avoid a collision.

R. R. Vermillion, W. F. Lilleston, both of Wichita, and E. T. Miller, of St. Louis, Mo., for the appellant.

Phil Callery, J. E. Callery, Caroline A. Lowe and R. L. Robertson, all of Pittsburg, for the appellee.

OPINION

MARSHALL, J.:

The defendant appeals from a judgment in favor of the plaintiff recovered for damages caused by injuries sustained in a collision between an automobile in which the plaintiff was riding and a train consisting of an engine and caboose operated by the defendant at a crossing of a public road and the railroad of the defendant.

The plaintiff alleged that the defendant was negligent in operating its locomotive in a careless and negligent manner and in running it at a dangerous and excessive rate of speed. The cause was tried to a jury, which returned a verdict in favor of the plaintiff for $ 2,000 and answered special questions as follows:

"Q. 1. Do you find that on the occasion in question the railroad track was straight for about-one thousand (1,000) feet northeast from the point of accident? A. Yes.

"Q. 2. At what rate of speed was plaintiff driving his automobile in going onto the railroad track? A. About 10 miles per hour.

"Q. 3. At what rate of speed was defendant's engine approaching the point of accident on the occasion in question? A. About 30 miles per hour.

"Q. 4. On approaching the railroad track on the occasion in question, did plaintiff stop before going on that track? A. No.

"Q. 5. If you answer the preceding question in the affirmative, state how many feet from the point of accident plaintiff last stopped before going on the track. A.

"Q. 6. On the occasion in question, from the time plaintiff got within 15 feet of the point of collision until he drove on the railroad track, what, if anything, was there to prevent his ascertaining the approach of the defendant's engine if, before going on the track, he had stopped and carefully looked along that track in the direction from which the engine was then coming thereon? A. Nothing.

"Q. 7. On the occasion in question, from the time plaintiff got within 25 feet of the point of collision until he drove on the railroad track, what, if anything, was there to prevent his ascertaining the approach of the defendant's engine if, before going on the track, he had stopped and carefully looked along that track in the direction from which the engine was then coming thereon? A. Nothing.

"Q. 8. On the occasion in question, from the time plaintiff got within 35 feet of the point of collision until he drove on the railroad track, what, if anything, was there to prevent his ascertaining the approach of the defendant's engine if, before going on the track, he had stopped and carefully looked along that track in the direction from which the engine was then coming thereon? A. Nothing.

"Q. 9. If you find for the plaintiff, please state upon what negligence of defendant, if any, you base your verdict. A. Exceeding speed limit and no evidence showing an attempt of the defendant to stop.

"Q. 10. From the time plaintiff entered the paved portion of the street until he got within ten feet of the railroad track, did he look northeast along said track for engines or cars? If so, where? A. No."

The defendant filed a motion for judgment on the special findings of the jury. That motion was denied, and judgment was rendered in favor of the plaintiff.

1. The defendant assigns error on the overruling of its motion for judgment on the special findings of the jury, on not rendering judgment for the defendant, and on rendering judgment in favor of the plaintiff. All these present but one proposition, and that is: Should judgment have been rendered in favor of the defendant on the special findings of the jury notwithstanding the general verdict?

The plaintiff seeks to avoid the contentions of the defendant by arguing that the plaintiff was not negligent, and that the findings of the jury were not in conflict with the general verdict. The findings show that both the plaintiff and the defendant were violating the law in the rate of speed at which they were traveling; that the plaintiff did not stop before going on the track; that he could have seen the approaching train when he was fifteen feet, twenty-five feet, and thirty-five feet from the track; and that he did not look to see whether or not a train was coming until he was within ten feet of the railroad track. In Jacobs v. Railway Co., 97 Kan. 247, 252, 154 P. 1023, this court said:

"More than a dozen times this court has said that a traveler must look and listen for approaching trains before attempting to cross railroad tracks, and that if he fails to do so and is injured in consequence thereof, damages cannot be recovered for such injury."

More than a dozen cases, beginning with the 10th Kansas and ending with the 94th Kansas, are cited to support the statement here made. Numerous cases decided since that time might also be cited, among which are Wehe v. Railway Co., 97 Kan 794, 156 P. 742; Bunton v. Railway Co., 100 Kan. 165, 163 P. 801; Williams v. Electric Railroad Co., 102 Kan. 268, 170 P. 397; Grisham v. Traction Co., 104 Kan. 712, 715, 181 P. 119; Rathbone v. Railway Co., 113 Kan. 257,...