Aсtion for damages for personal injuries. At ten A. m. on February 12, 1928, an automobile driven by plaintiff was struck by an engine of defendant at a public crossing in Fall River, Kansas. The trial was under the applicable law of Kansas pleaded in both the petition and answer. Judgment for $50,000. Defendant appealed.
The petition charged negligence as follows: (a) Defective crossing in that same was not constructed and maintained as provided by statute; (b) failure of the crossing bell to ring; (c) failure to provide a watchman or gates at the crossing, and (d) violation of the last clear chance rule under the law of Kansas in that defendant negligently failed to reduce the speed of the passenger train .at and during the time plaintiff was in peril.
The answer was a general denial with a plea of contributory negligence under the law of Kansas. The reply was a general denial.
The ease was submitted to the jury under the last clear chance rule and the charge that defendant negligently constructed and maintained the crossing, thereby causing the collision and injury to plaintiff. The statute required the crossing between the tracks to be constructed of crushed rock, gravel, wood, burned slag or other hard substance.
It will be noted that there was no charge of negligent failure to give signals by either engine bell or whistle. The evidence for plaintiff and defendant tended to show that the engine whistled for the *856 station and crossing. It also tended to show that it whistled for and to the order board in front of the station. Thereafter а number of danger signals were given when the engine was near the point of collision.
Defendant contends that the court erred in submitting to the jury the charge of negligent construction and maintenance of the crossing. It was a charge of primary negligence. "We will rule the question on defendant’s contention that plaintiff was guilty of contributory negligence as a matter of law. There was evidence as follows:
The highway (Main St.) in Fall River runs north and south and is eighty-five feet wide between sidewalks. It intersects at right angles three tracks of defendant. The north track is the main track and point of collision. It is almost straight for half a mile west of the crossing. A row of sand and coal bins about six feet high and twelve feet wide north and south are located immediately south of the south trаck and immediately west of the highway. Immediately south of the bins is a driveway into a lumber yard. In the lumber yard are buildings facing the driveway. Immediately south of the driveway is the office building of the lumber yard. The north wall of the bins is thirty-three feet from the main track and twenty-five feet frоm the north wall of the office building. A short distance east of the highway and south of the south track is an elevator. The stock pens are south of the south track and about three hundred fifty feet east of the highway. On the day in question cattle ears were on thе south track and in front of the stock pens. The depot is north of the main tráck and about one hundred twenty-five feet east of 'the highway. The space between the rails of each track for the width of the travel portion of the highway was planked with heavy oak boards, and there was one board on the outside of each rail. There was no complaint of this part of the crossing. But the surface of the highway between the tracks was dirt mixed with a few cinders, ashes and chat. The movement of cаrs and other vehicles over the crossing wore holes in the surface. It was rough and irregular. There was a hole (so-called) immediately south of the plank on the south side of the south rail of the main track. It was three or four feet wide and north and south аnd six or eight inches deep. It was not abrupt but sloped from the edge so that it was deepest about the middle. The distance between the tracks was twelve feet and between the-rails of the track five feet.
Plaintiff approached the crоssing from the south, driving a Hudson sedan sixteen feet long at fifteen miles per hour. The steering gear was on the left side and the window on said side was open. In the vicinity of the lumber yard office he looked northwest over the bins and neither saw nor heard a train aрproaching. He then reduced the speed of the car to five miles per hour and proceeded north to the *857 south, track where he gave attention to a hole in the street and then looked east for an approaching train. As hе procééded hórthward, he continued to look east" and at the crossing bell (which was not ringing) located north of the main track and on the west side of the highway. He continued without stopping. He did not'again look west until his car was over the middle track and the front wheels moving on to the south rail of the main' track. At that time he testified that the engine was within sixty or seventy feet of his automobile and was giving rapid' danger signals with the1 whistle. He had driven over the crossing at five miles per hour and was moving at that speed when he saw thе engine ápproaching. He did not think he had time to back from the track and'applied the gas in an effort to clear the crossing and escape injury. He testified that a hind wheel of the car ran into the hole south of the south rail of the main track, which prevented the gas from increasing the speed of the" car. ' However, the car continued to move over the main track at five miles per hour. It did not clear, for the north pilot step of the engine caught the left hind wheel of the automobile,' overturning it and injuring plaintiff. At the time the engineer' gave the danger signals and at the time of the collision the train was running "from twelve to fifteen miles per hour. It regularly stopped at the station east of the highway and the speed had been reduced fоr that purpose.
Plaintiff admits that if he had lookéd west he could have seen the approaching train and stopped within one or two feet and before he was in peril. But he argues that in traveling over the crossing his time was occupied in looking аt a hole in the crossing near the south track, in looking east ánd in looking at the crossing bell and listening to determine if it was ringing. There is no evidence tending to show that the hole near the south track interfered with the movement of the automobile, and it was not neсessary to look at the crossing bell to determiné if it was ringing. Furthermore, in looking east he instantly had a full view of all the tracks. He had ample time to look west. If he had done' so, there would have "been no collision. Under the law of Kansas he was guilty of contributory negligence as a matter of law. [Williams v. Railroad,
Defendant next contends that the court erred in submitting to the jury the charge of negligence under the last clear chance rule. In this connection it should be stated that the engineer and fireman wеre not called as witnesses.
In Kansas no duty of defendant arises under the last clear chance rule so long as plaintiff is guilty of contributory negligence. If such negligence of plaintiff ceases and he is in peril, it is the duty of defendant to exercise reasonable care to prevent injury to plaintiff. In Bazzell v. Railroad, 300 Pac. (Kan.) 1108, 1110, it was said:
“ ‘This doctrine can be invoked in negligence cases only where the party relying upon it has by his own prior negligence gotten himself into a predicament from whiсh his subsequent diligence will not avail to extricate him without injury or damage through the act or delict of another party, but where such other party has a fair opportunity — a last clear chance — to avert or minimize the accident, injury, or damagе, by the exercise of reasonable diligence after the negligence of the first party has ceased.’ [Jamison v. Atchison, T. & S. F. R. Co.,122 Kan. 305 , 308,252 Pac. 472 , 473.]” The rule is well stated in Dyerson v. Railroad,74 Kan. 528 , 536,87 Pac. 680 , as follows:
“The test is, What wrongful conduct occasioning an injury was in operation at the very moment it occurred or became inеvitable? If just before that climax only one party had the power to prevent the catastrophe, and he neglected to use it, the legal responsibility is his alone. If, however, each had such power and each neglected to use it, thеn their negligence was concurrent, and neither can recover against the other.”
In the instant case the negligence of plaintiff ceased at the time the front wheels of the automobile moved on to the south rail of the main track and he looked west and saw the engine. He was then in peril. Thereafter he was not guilty of negligence and from that time it was the duty of defendant to exercise ordinary care to prevent a collision. As plaintiff turned to look west the engineer gave а danger signal and continued to do so until the collision. Plaintiff contends that he should have released the air and applied the brakes. In Clark v. Railroad,
The evidence most favorable to plaintiff shows that the engineer did not have a “clear chance” to prevent the collision. “There
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was only a possibility be might do so.” [Mourning v. Railroad,
■ The judgment should.be reversed. It is so ordered.