96 P. 668 | Kan. | 1908
The opinion of the court was delivered by
Several assignments of error have been presented, but they are all based upon the idea that the: evidence and findings of the jury conclusively show-contributory negligence on the part of the deceased. It is urged that if Hansen, when at the crest of the-hill, had looked toward the southeast, which he could easily have done, the headlight of the train would have-been seen by him, and being thus warned he would not. have attempted to cross the track, in which case no accident would have occurred. It is assumed in this conclusion that the conduct of the deceased in driving down the hill as he did shows that he failed to look for an approaching train before starting down the road through the cut, and this failure constitutes the alleged contributory negligence. Without considering whether the-deductions of fact made by the plaintiff in error are sustained by the evidence or not, we are unable to concur in its conclusion that the deceased was guilty of contributory negligence by failing to look and listen when at the crest of the hill. The rule of “look and listen” as applied generally and in this state requires-people who are about to cross a railroad track at a public crossing to exercise such care and vigilance to avoid injury as a person of ordinary caution and prudence would use under the same circumstances. (7 A. & E. Encycl. of L. 428; Brown v. Tex. & Pac. R’y Co., 42 La. Ann. 350, 7 South. 682, 21 Am. St. Rep. 374; L. L. & G. Rld. Co. v. Rice, 10 Kan. 426; W. & W. Rld. Co. v. Davis, 37 Kan. 743, 16 Pac. 78, 1 Am. St. Rep. 275; C. R. I. & P. Rly. Co. v. Hinds, 56 Kan. 758, 44 Pac. 993; A. T. & S. F. Rld. Co. v. Shaw, 56 Kan. 519, 43 Pac. 1129; Railway Co. v. Dawson, 64 Kan. 99, 67
“It was the duty of the plaintiff in crossing the said track to use and exercise ordinary care to avoid injury; and if she failed to exercise ordinary care, or in other words if she was guilty of ordinary negligence which contributed directly or proximately to the alleged injury, then the defendant is not liable for the alleged injuries, even if they were received by her. By ordinary care is meant that degree of care which men'in general exercise in respect to their own concerns; and by ordinary negligence is meant the omission or want of that degree of care which men in general exercise in respect to their own concerns. The burden of proof is upon the defendant to show by a preponderance of the evidence that the plaintiff was guilty of contributory negligence. With that exception, the burden of proof is upon the plaintiff to prove her case by a preponderance of the evidence.” (Page 104.)
What constitutes ordinary care depends upon the special circumstances and conditions of each case. The conditions existing at different crossings, and the varying situations of persons about to cross, present phases of danger which differ so widely from each other that it seems impracticable, if not impossible, to fix a standard of duty in this respect which could be of general application. Therefore courts have, as a rule, limited their decisions upon this subject to the determination of what constituted ordinary care under the facts presented in the case being considered.
It has been generally held that ordinary prudence requires every person about to cross a railroad track to look and listen for approaching trains before going upon the crossing. If the track is clear and the view unobstructed, the performance of this duty will be prompted by a natural apprehension of danger. If obstructions intervene, so as to prevent a clear view, of the track, it may become the duty of the traveler to stop, stand up in his vehicle, and look and listen, or, in rare cases, get out and examine the track in advance of
Applying this rule to the facts here shown, we are unable to find the deceased guilty of contributory negligence. It does not appear that he had ever passed over that road before, or knew the condition of the railroad track, its proximity to the hill or any of the facts which made the crossing especially dangerous. No reasonable application of the rule of ordinary care will require a person 'to take precautions against a danger of which he is ignorant. When the deceased reached the point on the top of the hill 245 feet from the railroad crossing he was not aware that he could not thereafter see down the railroad track to the southeast until he was too close to the crossing to protect himself from a train coming from that direction. The darkness prevented him from seeing the condition of the ground between that point and the track. In the absence of knowledge to the contrary he might assume that in crossing the railroad here he could see approaching trains when far enough away to enable him to protect himself from danger, the same as at the ordinary crossing. In the absence of some knowledge on his part .of the dangers here to be avoided we can not say that the deceased was guilty of contributory negligence.
The judgment of the district court is affirmed.
