Williams v. The Iola Electric Railroad Company

• Decision Date: 12 January 1918
• Docket Number: 21,211
• Citation: 170 P. 397,102 Kan. 268
• Parties: C. E. WILLIAMS, Appellee, v. THE IOLA ELECTRIC RAILROAD COMPANY, Appellant
• Court: Kansas Supreme Court

170 P. 397

102 Kan. 268

C. E. WILLIAMS, Appellee, v. THE IOLA ELECTRIC RAILROAD COMPANY, Appellant

No. 21,211

Supreme Court of Kansas

January 12, 1918

Decided January, 1918.

Appeal from Allen district court; OSCAR FOUST, judge.

Reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1.AUTOMOBILE--Crossing Railroad--Trolley Car Violating Speed Ordinance--Negligence.A breach of a speed ordinance of a city by an interurban trolley car is negligence per se; but to subject the owner of the trolley car to liability for the violation of the city ordinance, in a damage suit by a private litigant, it must appear that the disobedience of the ordinance caused or aggravated the damages.

2.SAME--Railroad Crossing--Obstructions to View--Duty of Driver.It is not required in this state in all cases that one about to cross a railway track must stop, look and listen to assure himself that he can cross in safety; but where obstructions to his view prevent him from otherwise ascertaining the fact of safety, then it is his duty to stop to make sure of his safety before crossing.

3 SAME.Rule followed that a driver of an automobile cannot recover damages for injury to himself and his machine in a collision with a trolley car occasioned by the driver's attempt to cross a railway track without stopping to ascertain that he could cross in safety, when, owing to obstructions to his view, that fact could not have been otherwise ascertained.

4.SAME--Railroad Crossing--Obstructions to View--Failure to "Stop, Look and Listen"--Contributory Negligence.Plaintiff was driving his automobile along a public street and approached a railway crossing, but owing to obstructions to his view he could not ascertain whether there was any car coming on the railway track, and he did not stop to ascertain that fact.At fifteen feet from the track nothing prevented him from seeing an approaching car, but he did not see it until the front end of his automobile was eight feet from the track, and he was then unable to stop his automobile in time to prevent a collision.Held, that plaintiff was guilty of such contributory negligence as will bar a recovery of damages against the trolley-car company.

Altes H. Campbell, of Iola, for the appellant.

F. J. Oyler, of Iola, for the appellee.

OPINION

DAWSON, J.:

This case presents the usual consequences which arise when an automobile and a trolley car arrive at the same place at the same time.

The plaintiff was driving his automobile southward on Martin street in Gas city.An interurban passenger car belonging to defendant was running eastward on its car line, which crosses Martin street at right angles.A high embankment on the north side of the car line, with high weeds and grass growing thereon, obscured the car from plaintiff's view, and a collision occurred at the crossing; the plaintiff was injured and his automobile was damaged.Hence this lawsuit.

Plaintiff's petition charged defendant with various acts of negligence:

"That the defendant was careless, negligent and reckless in the commission of the injuries and damage referred to in (1) permitting grass and weeds to grow and accumulate on its right of way so as to obstruct the view of its cars approaching Martin street from the west, and which prevented plaintiff while driving southward, from seeing and observing the approach of defendant's car until within eight feet of the track; (2) in operating its car at the high, dangerous and reckless rate of speed of twenty-five miles per hour within the limits of Gas city and across Martin street in violation of the ordinance referred to; (3) in operating and running its car without headlights or other front lights and signals; (4) in failing to ring the bell, sound the gong or give other warning or danger signal of the approach of its car; and (5) in operating its car without a conductor."

Defendant answered that the alleged injuries and damages were caused by plaintiff's own negligence and without defendant's fault.

The general verdict was in favor of plaintiff, and the following special questions were answered by the jury:

"1.At what rate of speed per mile (hour) was the plaintiff's automobile moving when he first discovered the approaching car?Ans.Four to five miles.

"2.When plaintiff was at a point twenty-five feet north of the railroad track in question, what was there, if anything, to prevent him seeing or hearing the approaching car?Ans.Bank and weeds.

"3.What distance was the plaintiff from the railroad track in question when he first discovered the approaching car?Ans.Front end of automobile eight feet from rail.

"4.Were the inside lights and the headlight of the car in question burning as it approached Martin street at and just before the time of the accident?Ans.Light burning.

"5.From what distance within twenty-five feet north of the railroad track could plaintiff first have seen the approaching car in question?Ans.Fifteen feet.

"6.Did plaintiff as he was approaching the railroad crossing in question, bring his automobile to a stop before it reached the north rail of the track?Ans.No.

"7.When plaintiff was at a point eight feet north of the railroad track, what was there, if anything, to prevent him seeing or hearing the approaching car?Ans.Nothing.

"8.As the plaintiff approached the crossing in question what, if anything, was there to prevent him seeing or hearing the approaching car in time to stop his automobile before it passed on to the north rail of the track, if it did?Ans.Bank and weeds.

"9.What was the distance from the railroad track to the embankment, north of the track and west of Martin street, which plaintiff testified prevented him seeing the approaching car in question?Ans.Bottom of bank five feet from rail.

"10.At what rate of speed per hour was the defendant's car in question moving when the motorman discovered the plaintiff's automobile approaching the crossing?Ans.About twelve miles per hour."

Defendant appeals, contending...