85 Kan. 90 | Kan. | 1911
This was an action by Elizabeth Beech to recover damages from the Missouri, Kansas & Texas Railway Company for the alleged negligent killing of her husband, Adam Beech, at the intersection of a highway and the railroad, about a mile southwest of Walnut, Kan. Adam Beech was a farmer, about sixty-eight years of age, and while going home, driving a horse hitched to a buggy, at ten minutes past nine o’clock, P. M., on November 13, 1907, he was struck by a passenger train of the railway company at the crossing and was instantly killed. The train was behind time and was traveling at the rate of fifty miles per hour when it collided with Beech. Approaching the crossing from the southwest the train came over a hill through a cut, which was about one-half mile from the crossing, and from that point there is a downgrade of the track extending over the crossing and to the town of Walnut, a distance of about one mile and a half. For some distance near the crossing the ground is low and the grade of the railroad is from eight to ten feet high. There is another crossing near the top of the hill, about 2600 feet from the point of the collision, where the whistle of the locomotive was sounded, but no whistle was sounded or other signal given within eighty rods of the crossing where Beech was killed. ■
The principal ground of negligence relied on was the failure of the railroad company to give the statutory signals on approaching the crossing. It was alleged and found that the train coasted downgrade from the top of the hill, without steam, in a comparatively noiseless manner, at the rate of fifty miles per hour. On the other hand, it was found that the night was clear, the moon was shining and a light breeze was blowing. The locomotive was equipped with an electric headlight, which was burning on the night in question, and anyone standing on the track could have seen the train
The jury returned a large number of special findings- and a general verdict awarding damages to the plaintiff in the sum of $4000. There were findings, somewhat general in character, that the railroad company was negligent in not sounding the whistle eighty rods from the crossing and that Adam Beech was not guilty of contributory negligence. Other findings gave the conditions at the crossing, the kind of weather, the-character and speed of the train, the condition and movements of Beech and how far the train could be-seen from different places as a person approached the crossing. Motions were made to set aside the verdict and grant a new trial and for judgment on the special findings, and also to set aside the special findings. The-court set aside the general verdict and awarded judgment in favor of the defendant on the special findings. The other motions were necessarily denied. The-plaintiff alleges error, and the question presented for decision is: Do the ¡special findings show that Adam Beech was guilty of contributory negligence ?
In addition to the facts stated the jury found that Adam Beech approached the crossing at the rate of three miles per hour, driving a gentle and well-broken horse; that he had lived within three miles of the crossing for twenty-four years and during that time had been familiar with the crossing and the conditions surrounding it. His faculties of sight and hearing-were good. The railroad was straight, and a person at the crossing could have seen the headlight of the engine, as it approached from the southwest, one-half of a.
While the general verdict and some conclusions drawn by the jury are to the effect that the deceased was free from contributory negligence, the ultimate facts found show that if he had exercised the care for his protection which the law requires, and had used his faculties of sight and hearing before going upon the crossing, he could have seen and averted the danger and collision. There was nothing to prevent his seeing the coming train when he was forty-eight feet from the track. No one saw what his action was at this point, but the night was clear, his horse was gentle, he was familiar with the crossing, his sight and hearing were good, and if he took the precaution to look he necessarily saw the train when he went upon the t^ack and if he failed to look and ventured blindly onto the
“It is the duty of a person about to cross a railroad track to make a viligant use of his senses as far as there is an opportunity, in order to ascertain whether there is a present danger in crossing. A failure to listen, or look, when by taking this precaution the injury might have been avoided, is negligence that will bar a recovery, notwithstanding the negligence of the railroad company in failing to give signals contributed to the injury.” (Syl. ¶ 2.)
A railroad track is itself a warning of danger to all who go upon it, and one about to cross should look and listen for a train before attempting to cross and an omission to do so is an omission of ordinary care which will defeat a recovery. (Railway Co. v. Wheeler, 80 Kan. 187.) The deceased was familiar with the crossing and necessarily recognized it and the attending risk in passing over it. While there was a short distance of the approach in which his view was obstructed, that fact required greater care and vigilance on his part and it was incumbent on him to look again when he passed the obstruction and reached a point where he could have obtained a clearer view of the track. (A. T. & S. F. Rld. Co. v. Townsend, 39 Kan. 115; A. T. & S. F. Rld. Co. v. Hague, 54 Kan. 284; C. R. I. & P. Rly. Co. v. Williams, 56 Kan. 333; Railroad Co. v. Holland, 60 Kan. 209; Railway Co. v. Wheeler, 80 Kan. 187; Johnson v. Railroad Co., 80 Kan 456.)
When the deceased passed the obstruction he was on level ground, forty-eight feet from the track, and the lights of the train were in plain view. If he was giving attention to his situation when he was forty feet from the track the danger of proceeding must have been apparent and there was ample opportunity to protect himself. Even when thirty feet from the track, and the glare of the headlight was upon him,
“It is not enough for a traveler to look where a train can not be seen or to listen when it can not be heard. Nor will it suffice that one has looked some distance away from the crossing when a view on a closer approach would have revealed the danger.” (Railway Co. v. Wheeler, 80 Kan. 187, 191.)
Some of the findings in regard to what was done or seen by the deceased as he approached the crossing are based on presumption alone, as there was no eye
The ultimate facts specially found by the jury must prevail over the general findings, and our conclusion is that the special findings justified the decision of the trial court awarding judgment for defendant.
The judgment is affirmed.