The opinion of the court was delivered by
The action was one for damages for demolition of plaintiff’s autotruck when he drove it against the side of defendant’s freight train standing on a highway crossing in the town of Trent, Neosho county. An objection to the introduction of evidence on the ground the petition failed to state a cause of action wаs sustained. Plaintiff appeals.
The petition alleged that defendant unlawfully obstructed the crossing with its freight trаin for forty-five minutes. There is a statute making it a misdemeanor for a'railway company to allow a trаin to stand on a highway crossing such as the one in question for longer than ten minutes, without leaving an opening in the traveled portion of the crossing. The statute is one to facilitate the movement of traffic оn the highway and to prevent blockade causing congestion and delay. The statute was not one tо prevent autotruck drivers from running against the sides of freight trains. (Sheldon v. Wichita Railroad and Light Co.,
The petition alleged that when the accident oсcurred it was long after sunset, it was dark, there was fog, there was dense smoke from the engine of the train, аnd the railway company did not provide signal lights or other warning that the highway was obstructed by the train. There wаs no allegation that there was anything peculiarly dangerous about the crossing which made it reasonably necessary for the railway company to have gates, or lights, or a gong, or a watchman аt the crossing, to warn highway users against attempting to cross. It was just dark and foggy and smoky. There is no statute which rеquires a railway company to warn travelers there is a freight train across tire highway when those conditions exist, and a railway company rests under no common-law duty to take such precautions for the benefit of drivers of auto vehicles.
Under ordinary circumstances a freight train standing across a highway on a dark and foggy night will sufficiently reveal itself to travelers exercising due care in the operation of auto vehicles which are equipped with proper lights and which are driven at a proper rаte of speed under the conditions. A railway company is not required to anticipate the erratic conduct of others. At the time the accident occurred the law regulating the use of the highway rеquired that plaintiff’s truck be equipped with good and sufficient brakes, and with two lamps exhibiting white lights visible at a distance of 300 feet in the direction in which plaintiff was proceeding; and required plaintiff to drive at a rate of speed reasonable and proper under the conditions. The railway company’s duty extended no further than to exercise reasonable care, and it was not required to foresee thаt on one night of a period of history the driver of a lawfully equipped and operated truck might be sо completely engulfed in Cimmerian darkness, impenetrable fog and dense train-engine smoke that he сould not apprehend a train was there, and take the extraordinary precautions necеssary to protect him from projecting his truck against the side of the train.
The result of the foregoing is, the petition did not disclose neg
The petition alleged that plaintiff did not know he was near a railway track, had no notice or knowledge of the obstruction, and on account of extreme darkness, fog, and dense smoke of the engine, he drove his truck against thе side of a freight car and demolished the truck. He should have operated the truck in accordаnce with his ability to see.
In the absence of statute it is negligence for a driver to operate his аuto vehicle at night without lights which will enable him to see objects ahead of him in time to avoid accidеnt. The statute requiring lights was not enacted merely to secure the giving of notice of approach of the vehicle carrying the lights. One of the purposes of the statute was to require equipment which will еnable a driver to see ahead of him, and it is negligence for him to proceed at such speеd that he cannot stop within the distance he can see ahead of him. The rule has been applied to one driving at night (Giles v. Ternes,
The judgment of the district court is affirmed.