Wren v. Chicago, B. & Q. Ry. Co.
| Decision Date | 07 December 1931 |
| Docket Number | 17296 |
| Citation | 44 S.W.2d 241 |
| Parties | WREN v. CHICAGO, B. & Q. RY. CO. |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court, Buchanan County; L.A. Vories, Judge.
“ Not to be officially published.”
Action by Raymond Wren against the Chicago, Burlington & Quincy Railway Company. A judgment was rendered for defendant, and from an order granting plaintiff a new trial, defendant appeals.
Reversed and remanded, with directions.
E.M Spencer, of St. Joseph, for appellant.
Sherman, Maughmer & Mumford. of St. Joseph, for respondent.
This is an action for damages for personal injuries. There was a verdict and judgment in favor of defendant, but the court granted plaintiff a new trial on account of the giving of defendant’s instruction A-1. Defendant has appealed.
The facts show that plaintiff was injured shortly after six p.m. on the 18th day of December, 1929, as a result of a collision between an automobile which he was driving and a freight train of the defendant. It was after dark. The collision took place where the tracks of defendant cross Twenty-Second street in the city of St. Joseph. The plaintiff lived at Gower, which is about 17 ½ miles from the place of the accident. He had been hired by a party of young ladies to convey them from Gower to De Kalb in order that they might engage in a basketball contest at the latter place. Plaintiff, who was driving, and two of the young ladies occupied the front, and the four other ladies the rear seats of the automobile. In going to their place of destination, the automobile had crossed the railroad tracks of defendant at Saxton, which is about four miles southeast of St. Joseph. It then proceeded over the highway which lay practically parallel with the railroad tracks. The tracks are visible from the highway for nearly the entire distance from Saxton. The highway on which plaintiff approached Twenty-Second street after reaching the city limits is known as Garfield avenue, which crosses Twenty-Second street at approximately right angles. Twenty-Second street crosses two railroad tracks, which are about 100 feet apart, situated at a point from thirty to fifty feet south of Garfield avenue. The nearer track to Garfield avenue is the track of the defendant, and the other that of the Santa Fé Railroad. On the east side of Twenty-Second street, and about midway between the two tracks, is situated a flagman’s shanty. There is what is known as a "wig-wag" signal, near each of the railroad tracks, having a red light therein ten or twelve inches in diameter. The wigwag swings back and forth ringing a bell. The red light is lit during the nighttime. One of these wigwag signals is located on the west side of the street just north of defendant’s tracks, and is attached to a post and at a point thereon a considerable distance in the air. When a train approaches within a distance of about 1,400 feet of said crossing, the wigwag starts to operate, and the bell to ring.
Twenty-Second street is an arterial highway, and a stop is required of all traffic approaching it. The testimony tends to show that plaintiff stopped on the east side of Twenty-Second street about four or five feet east of the stop button; that he then started up his car and turned sought into Twenty-Second street on the west side thereof. He testified that when he was about even with the sidewalk on the sought side of Garfield avenue he looked in both directions for the possible approach of a train and saw none; that he did not look again and did not see the train until one of the girls "hollered"; that he then saw a west-bound freight train upon him, and he turned the car slightly to the right in an unsuccessful effort to avoid being struck. The evidence shows that at this time the engine was fifty or sixty feet away, and that the front end of the automobile was on the track, or nearly so. Plaintiff testified that when the girl gave the warning he glanced over his shoulder and saw a dark shadow under the headlight of the train; that the engine was so close that the headlight was above him, and he was in a dark shadow. He then shifted into second gear and turned his car somewhat to the right, and that was the last he remembered. There was other evidence tending to show that the engine struck the car a little above the left rear fender. The train ran about 360 feet before stopping.
Plaintiff testified that it was very cold; that the thermometer registered about eight or ten degrees above zero; that there had been snow flurries that day and evening, but there was no snow, ice, or sleet falling at the time of the collision; that he was seated on the left-hand side of the car and had the windows of his car up, except the one immediately to his left, which was down from the top three or four inches in order to afford ventilation; that there was no frost or other substance present upon the wind shield or the glass of the car to obstruct or obscure his vision; that where Twenty-Second street intersects Garfield avenue defendant’s track slopes slightly toward the sought; that after he started up at the street intersection he proceeded "probably between one, five or six miles per hour." He testified that he heard no bell or whistle sounded; that he, at that time, did not know that there was a wigwag signal present, but, since the accident, he had seen one there.
There is evidence from which the jury could find that the bell on the wigwag was not ringing; but the evidence is undisputed that the red light was lit, and that it was being wigwagged at the time plaintiff crossed the track, which indicated the approach of the train. Plaintiff testified that he had been over the crossing before and knew there was a watchman stationed there; but there was no watchman present at the time of the collision. There was evidence that when the train was 300 yards from the crossing it was running at a rate of speed of twenty to twenty-five miles per hour; but it slowed down to a speed of twelve to fifteen miles per hour before going over the crossing. The evidence is contradictory as to whether the engineer on the train sounded any alarm of its approach, either by bell or whistle. The evidence shows that at the intersection of Twenty-Second street and Garfield avenue one could see in the daytime for a distance of approximately 2,000 feet down the track toward the east; that one standing upon the track 250 feet from where it crosses Twenty-Second street could see in the daytime the intersection of Twenty-Second street and Garfield avenue. The evidence further shows that the engine had a bright headlight upon it.
Plaintiff adduced no testimony tending to show how far the headlight of the engine cast its rays to either side of the track. Defendant’s testimony tends to show that the vision of the engineer was widened as the distance in front of the engine increased; that at a point 400 feet from the engine a man could be distinguished no further than twenty-eight or twenty-nine feet from the center of the track; that at 150 feet he could see "a little more on each side" than at 100 feet. No test was made as to how far from the center of the track an automobile could have been seen when the engine was at a given distance away. Plaintiff’s testimony tends to show that one standing on the track would be below the point where the engineer would be stationed in his cab as he approached the crossing, and, as before stated, that the witness could see in the daytime the intersection of the streets for a distance of 250 feet from the railroad crossing.
The engineer, who was seated on the north side of the cab, testified: That he was in the cab looking out of the window; that he commenced reducing the speed of his train about one-half mile from the railroad crossing; that he did not see the automobile until "it went on the track right in front of the engine, * * * there is more or less shadow around this crossing"; that at this time the train was going about twelve miles per hour. The engine was "just going on the crossing"; that he immediately applied the brakes and did everything he could to avert the collision, but that was impossible; that he sounded the whistle when he was approaching about 400 feet to the east; and that the bell was ringing continually by the automatic bell ringer.
The case was submitted to the jury by the plaintiff on four instructions. The first one is upon primary negligence based upon defendant’s failure to maintain a watchman. This instruction told the jury, however, that if plaintiff was guilty of contributory negligence he could not recover on the theory submitted in this instruction. The second instruction is based upon the violation by defendant of ordinances of St. Joseph pertaining to the operation of freight trains within the city limits in excess of twelve miles per hour, and providing that a bell on a locomotive engine should be rung...
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