*1 known the defendant had not that the witness find from the record witness and as a character qualify of time period for a sufficient that affected only asked questions Defendant was so stated. have been cumu- His could his and veracity. truth It is not neces- character witnesses. of the three preceding lative testimony of this with the detailed burden sary opinion mention possessing contention —that no of his witness. Defendant’s no that his character has good certainly means a bad character — this case. application rights substantial shown no defendant’s
Since prejudice case, will not be judgment disturbed. have resulted affirmed. Judgment 40,691
No. Topeka Appellant, v. The Kendrick, Santa F. Donald Company, Appellee. Fe Railroad (320 1061) 2dP.
Opinion filed January 1958. Morrison, Frank, Wichita, argued L. the cause and Robert C. John Templar, Wright,
Wichita, George Templar, of Arkansas N. Ted Earle appellant. City, with him the briefs for the were Wheeler, Treadway Topeka, argued the cause Edwin M. both of E. W. Putt, Dale, Hickman, City, and C. of Arkansas W. Donald both and Kirke J. appellee. Topeka, Reeves, of were with them on the briefs for B. J. of the court delivered opinion the de- sustaining from an order This is appeal Hall, J.: *3 case. crossing in railroad murrer to the evidence a plaintiff’s Mat- others, Tolliver Manley, The Kendrick and Charles plaintiff Kansas, Winfield, and Milton McCollum were residents thews Wichita, Kansas. in Boeing Company at the employed Airplane them alter- four of whereby a arrangement car They pool to Wichita. Winfield in their automobiles from driving nated 15, 1955, en they were route On the afternoon of December at 3:45 m. p. their work commenced in Wichita where plant his car driving Manley Charles particular day On McCollum and Milton Kendrick, Matthews Tolliver the plaintiff left im- rear seat to sat in the The plaintiff were passengers. the right Matthews sat to Manley. behind the driver mediately front seat. in the right rear seat and McCollum driver, route from Winfield their usual followed Manley, (cid:127) Winfield to north from U. Highway S. by taking Wichita K-15. to Wichita on thence west Highway of Kansas junction line from Fe Railroad operates & Santa Atchison, Topeka Kansas, Akron, From east and west. to points northward Winfield K-15, of US-77 to the junction north of Winfield a small town Fe Railroad the Santa miles, 77 and highway of some 2% a distance are parallel. track wide, aby K-15 westbound connects with US-77 Northbound curve 1,760 length. This feet curve approximately gradual a railroad feet east of appoximately K-15 merges into westbound crossing over K-15. The highway and are at crossing substantially right angles.
At approximately point the curve from joins where US-77 K-15, 490 feet approximately east of the there are the crossing, usual “hazard type warning signs.” There were additional cross- arms signs on each side of the crossing. 1,320 track, feet
Along point at south of approximately crossing, there awas whistle northbound trains post approach- ing the crossing.
The accident occurred when a Santa Fe in a proceeding northerly direction and the automobile driven by Manley Charles direction proceeding westerly on K-15 collided at the crossing. Manley was killed and the plaintiff injuries suffered for which this suit was brought.
The plaintiff against Kendrick suit brought the estate of driver, Manley, Charles and the Santa Fe Railroad. The cases were consolidated for trial. At the close of the evidence both defendants demurred to the evidence. The demurrer de- fendant Santa Fe Railroad was sustained the demurrer of the Manley estate was overruled. gave testimony his own petition support of his Matthews, car; the passengers one of in the Snook, at who employee Boeing commuted from
Roy another Snook, Eugene riding Winfield and with son Hanna who was his Joe about 500 feet and others at a on the curve behind Man- point occurred; Hanna; ley car the accident Snook and Eugene when Joe Lawrence O’Hara, who lived a farm in Butler County and who at the time of the accident on the north sign a stop approach to K-15 about 150 feet east from the crossing; Lester Koch and *4 LaFollette, Marvin State Kansas Patrolmen Highway who investi- gated accident; Desbein assistant county engineer; and James several other witnesses who testified to plaintiff’s injuries as which are not material issues to the raised in this demurrer.
Desbein testified toas the physical of the and aspects highway the railroad track. He measured the distance from the high- way to the whistle 1,320 post and it found to be feet.
Plaintiff testified Manley driving Kendrick that was 60 or about US-77; miles as he northward on per proceeded hour as they proceeded not see hear the Santa Fe train. he He said:
“. . . I I first noticed the Santa Fe train when was in the of circle circle) car a when our was (the was also known as K-15 curve direction, northwesterly . . . pool with a car had entered into I car and “. . work . traveled to . . . That Manley, and Milton McCollum Tolliver Matthews Charles every way cars, back and forth expenses drive them on all to to it saves boys car on Boeing pool. took his day. approve Each of the car had to days. alternate very good very reputation a Manley a driver. He was “Charles had a signs. speed He drove within the observed all the traffic careful driver. He cars, none of other fellows drove their the State laws. When the limits of taken, drove, he nor the route which had control over the manner riders speed drove. nor the at which he my down when five or six inches “. . window on side was about . on, was noise was not and there no I first the train. The radio in car saw train, whistle I was somewhere around the car. When first it saw my exactly post. I had sort of look over left not know I do where was. by just looking out the I not the train shoulder to see the train. could see Up point, know I did I 'had to back. to this side window. turn look any Santa Fe there was train on the tracks. curve, gas Manley stepped little he on a as Mr. started off the “Just speed car, more, Manley ... of the . . . Mr. accelerated speed Manley curve, of his . . increased die end of . When Mr. Manley speed curve, gave warning. . I . . Mr. increased car on the yelled up the track his him that ahead. I I warned there of car. wanting Manley what we were wanted to know Mr. turned around and out. Manley again. for, him Mr. stop I warned what we had hollered about. During seconds, hit the brakes. around and then after a few turned brakes, squeal kept warning him. time, three us There was all got stopped, then hit the train. we almost circle, doing “Coming about 60 to 65 miles Akron to the we were doing hour, . per we 10 to miles . . and in the circle were less. It crossing signs hazard railroad the railroad to the tracks. over 400 feet from warning, gave I could see down the railroad tracks I first When nothing At to obstruct the driver’s time Clark house. There was view. no up point I had I saw the train ever heard the train At no whistle. hear I was in curve did I the train whistle. did not hear the time while I any time. train whistle at going “The train faster than we were. . . .” corroborated with that Ken- generally Matthews’ He testified: also drick. K-15, part “. . The time I saw the train we were in . first curve day, I and I had not seen the train before that nor had heard whistle. say past ways the train we first would were a little middle
When I saw I we Up saw never heard it As the time the train I had whistle. curve. I up, Manley speeding curve, started I knew Mr. started out *5 time, hollered, ‘Stop hadn’t it seen at so it’ I and he turned around and said, for’, ‘Huh, you stop do what to want and him I told ‘There’s a train on track,’ (Kendrick) and the about that time Donald said ‘There’s train on a track,’ the it seemed it and he didn’t see then for a he while and went on down ways pointed little a and I even the train to out him. someplace past “. . We . were railroad hazard I the boards when pointed twice, times, the train him out to three some- him. We warned that, thing like . . . Well, after “A. I showed him the train he turned around then and back a taking went further and little I didn’t know he was whether time his to get what, anyway his on the foot brake but didn’t think I he was ever going got his finally got hit brakes. he But onto them and after on he quit hollering doing his all brakes we then knew he was the best could. thought going get stopped “I he was car there one at time. At the say going most I would that we weren’t more an hour than 10 miles at get stopped. time hit going we train. It looked like we were up train never slackened the time did I saw it. I never hear the before, heard the train I have whistle. whistle I it I think could hear know, whistle, away. don’t mile first I From the time I saw the train that collision, day speed.” until it never slackened its Roy Snook testified: Manley quarter “. . . The car was about a ahead of us when mile Manley I . train, first saw it. . . When the car collided with we were immediately straight-of-way. behind him on curve, rounded “As we the train on Santa I saw Fe We tracks. watching pulled first saw the train when we were out We it Akron. all track, way up through it all don’t saw I how curve. know crossing, pulled it far but was was from off when we south onto post I where seen K-15. know the whistle had the there. I it. I post, up train under whistle observation when clear it was crossed audible from the time it K-15. There emanated train. was no sound any traveling . were faster than tire train. did hear sound . . We I not impact. up from the locomotive from Akron time of the of the train until the any I at time hear whistle or bell from train. driving say the train was “We were around 70 miles I hour. would doing miles don’t think the train between 60 and 65 an hour. I somewhere immediately impact. speed any time before
reduced Manley ap- lights go car when he set his brakes tail on the “I saw the they proximately hit.” or a little before 50 feet more Snook’s Eugene substantially same as his father’s, Roy Snook. He said: also curve, . “. . As we came out of the I Manley could see the car’s stop lights go go thought of the car front end down. I for a while going he was to make it. *6 through way the I was half tracks when on the Santa Fe “I saw the train give warning any audible hear train any time the I did at curve on K-15. not speed its until presence. to slacken like the train tried It didn’t look of its right the at intersection.” happened impact “Q. the train and what the car and the between Describe immediately both them thereafter. Well, Manley going line just center of the car about down the “A. the was right highway rear I he . of the trucks believe when hit . . front the train. “Q. that with front and back of train? Where would be reference to the
“A. The back of train.” Hanna testified:
Joe just train out curve “. . of the when and . We come Manley any from the train car collided. I did not hear audible sounds any hear or did not whistle bell. going light say “I would train 65. tail was about 60 to Manley thought going just he to be car a few I was able was seconds. stop.” Manley you you anything, car after “Q. did observe about What, if straight you? west of it when was saw it ” riders, going guy is that train.’ I ‘That hit “A. told the O’Hara testified: Lawrence along there that time of that travels about am with train “I familiar Doodlebug. quite I day I have seen it often. called the sometimes something times. I hear it like a half whistle lots of could
heard down, my that I could down K-15. I had so see or more back window mile clearly. I did hear It was down time of the not traffic at collision. any any did at time while I I hear bell or whistle was train whistle. parked there.” Koch, Highway Lester Patrolman testified: They feet . . found a skid marks. commenced 78 east “. We set of stopped a foot east tracks or about of the railroad tracks railroad at of the railroad tracks.” any there? any train crew “Q. you members of the Did time see there, I ain’t sir, the train crew “A. Yes was one there member sure, I conductor. but think was the happened? attempt “Q. you from him what Did ascertain “A. Yes sir. what, anytiling, you? “Q. And if tell he about, figured about the he All me he saw the car “A. he told was that get him, stopped, I asked same time car seen said he couldn’t yes. and he said him if he blowed the whistle any Was further there comment it? “Q. about “A. me, Not from no. long He didn’t when anything state he blew “Q. or how whistle
that kind? “A. No sir. LaFollette,
Marvin a Highway Patrolman testified: laying righthand “The car track, was ditch on the side of the railroad quite damage a bit of to it. approximately done The motor car was a half mile down the track.” (the conductor) you tell about did he accident? “Q. What “A. I had the railroad started down track to motor car which at that stopped coming time I and met the conductor back and then both we proceeded back scene accident. *7 you happened? Did him ask what “Q. “A. Yes. you? What he tell “Q. Well, “A. I if asked him he would care to make a statement and I believe were, exactly, remember his words I don’t he would rather not talked until he officials, they and then would make official statement.” ruling on demurrer the court said: “ ‘By the Fe’s Court: The Santa primarily is sustained demurrer on Kansas, Atchison, Topeka Rly. basis case in [Harmon 171 403 & v. S. F. occupying Co.], crossing, lawfully Santa motor coach Fe that ” contributorially negligent.’ was as a matter of law to the evidence re- Upon demurrer this court called upon sufficiency of and not plaintiff’s view evidence to weigh evidence for the of decision on merits rendering a of purpose action, duty and this same was incumbent upon trial court. The rule is so established well in this and other that jurisdictions necessary would not be reiterate that in testing the sufficiency demurrer, of evidence against as court shall consider of all true, evidence plaintiff’s shall consider favorable to plaintiff, together with all reasonable to be therefrom, inferences drawn and shall not disregard plaintiff, weigh part any unfavorable that is nor differences contradictory, weigh any between his direct cross-examination, give the evidence plaintiff a liberal and, construction all doubt defendant con- resolving against if so sidered, there evidence which or tends to is any supports support any case demurrer theory, shall be A overruled. few of our more recent cases to this rule In re are: Estate adhering Dieter, 359, 417, 954; Staab, 172 239 v. Kan. P. 2d Staab 160 Kan.
257 & 418; Palmer Power 231, v. The Land 239 2d 172 Kan. 163 P. Stewart, Fry McCracken v. 129, 963; 960; 223 2d 2d 170 Kan. P. P. Fraker, Cadle, 724; Blankenship v. v. 14, 171 Kan. 229 173 Kan. P. 2d Bennett, Revell v. 438, 439, 683; 345, 249 P. 2d Kan. 176 2d 162 P. Huggins v. Kansas Power 538; Light 27, 164 Kan. 187 P. Gabel 491; v. Samms v. 2d Hanby, 165 116, 239; 2d Kan. 193 P. 556, Regier, Kimble, 438, 167 Hukle v. 414; Kan. 207 P. 169 Kan. 2d 441, Stewart, 434; Schneider v. 219 P. 2d 158, 163, 223 P. 170 Kan. v. Siegrist Cain 698; 866, 909; v. 2d 2d Steely, 173 Kan. 252 P. Fulton, Wheeler, 223; Messinger v. 11, 175 Kan. 259 173 Kan. P. 2d Hill Southern Lines 851, 904; Stage v. Kansas 252 143 P. 2d West, Worrell v. 44, 923; 467, 1092; Kan. 53 P. 179 2d 2d Kan. 296 P. Foundation, Noel v. v. 38; Menninger 23, 180 299 2d Kan. P. Jones Winn, Palmer, 587, v. 179 Harvey 199; 472, Kan. 297 P. 2d 179 Kan. McDonald, Brent v. 1053; 296 P. 142, 396; 2d 180 300 2d Kan. P. Doskocil, v. Cosby Suttle, 367, v. 180 Kan. Koch 1107; 303 P. 2d 180 603, 123; Kan. 306 2d City v. 831, P. Boggs Augusta, 180 Kan. 72; 308 P. 2d Mutual Farmers Automobile Ins. Jameson 181 Moss, Administrator, 171, 120, 394; Kan. Kan. Haqa 309 P. 2d 181 Brosius, Witmer Estate 281; 200, P. 2d 2d 181 Kan. P. Hamilton v. re 937; 474, 232; Ferguson, 181 Kan. In Estate 312 P. 2d Modlin, Coleman v. Patti Construc- 428, 692; 172 Kan. 2d P. tion 53, 2d Other P. 1028. holding cases Ed.], same effect be found in 5 Hatcher’s Digest Kansas [Rev. Trial, Trial, and West’s Digest, Kansas 156 (2) (3). § § Harmon v.
The lower court Topeka relied on F. S. *8 Rly. 2dP. 489 in that the was deciding train lawfully occupying the and crossing the con- plaintiff was of guilty tributory negligence as matter of law. n True, case not authority This for either it an proposition. was action for damages by sustained in a accident plaintiff crossing and who was an riding passenger as in automobile. The plaintiff alleged several different the grounds of on behalf negligence of railroad. The court considered de- thoroughly ground each and that plaintiff’s termined the evidence failed the allegations to sustain that no actionable negligence had been shown. £nd (cid:127) The of the not contributory negligence plaintiff was even con- sidered the The by court.- court said: .competent analysis substantial, result evi- “TZie of this is that there was no negligence
dence to establish of the defendant. this “There is not much in its answer not else to lawsuit. Defendant negligence plaintiff, plead contributory but of after had was she testified that plaintiff’s ground to as a demurrer the for the evidence. Much of included appellee, question. brief, particularly is devoted to the brief this of view negligence plaintiff’s conclusion evidence shows no actionable of of our that plaintiff’s contributory negligence, and necessary discuss it is to not defendant (p. 412.) decision thereon.” base no we case the the was by relied negligence The as statute. provided by sound its whistle failure 1949, 66-2,120 follows: G. S. as provides engine, and be each shall attached to locomotive “A steam whistle shall be blasts) eighty (two long least rods short times two sounded four street, except public any place road cross or where railroad shall the corporation all shall villages, also be liable . . . cities neg- any person by by damages shall reason such sustained which be . . .” lect: court but Harmon made in case contention was
A similar said: whistle was thor- that defendant failed to use the “. . . contention plaintiff. by Bybee, disproved testimony called by the witness
oughly blowing, that was bell whistle but testified He 412.) ringing.” (p. Here plain- situation. different entirely presents This case ones, who disinterested witnesses, several including tiff six did not hear they at least the train did not whistle testified of a high- only contrary evidence whistle. The as blew the saying engineer way patrolman quoted who all such conflicts must whistle. on demurrer Under above rule be resolved the plaintiff. in favor of the lawful right
This question case also does not present case Harmon case. This of a train as occupy a crossing failing a train in sound presents question negligence proximate to do so is the any at a whether failure crossing, a whistle injuries, cause of the whether the plaintiff’s plain- accident and tiff is any negligence. barred by contributory
Did the elements of recovery? evidence meet these 1949, 66-2, 120 S. on our statute since 1868. G. has been books Leavenworth, Rice, & L. G. R. Co. early Since case of Ed.], has held Kan. 321 our court rule steadfastly [2nd required this statute is signals negli the failure to give made it se. A. B. negligence per (M. Rly. later cases gence *9 259 Stewart, 226, 151; Co. Co., v. 30 2 Kan. Pac. Clark v. Mo. Pac. Rly. 350, 134; 622, 35 Stevens, Kan. 11 Rly. Pac. Mo. Pac. Co. v. 35 Kan. 25; Townsend, 115, 12 Pac. A. T. & S. Rld. F. Co. v. 39 Kan. 17 Pac. 804.)
And general rule in other jurisdictions with similar 518; statutes. & R. (Baltimore Joseph, O. Co. v. 2d 112 F. Hobbs Co., v. 58, 841; Union R. 62 R. Ida. 108 2dP. v. Busker Pacific Co., 449; New York Cent. R. 149 S. 2d (Mo. App.) W. Moore v. Co., 406, Atlantic R. Coast Line 192 So. C. 7 E. 2d S. 4.) The rule was A. & well T. S. Rld. expressed F. Co. v. Town send, supra. negligence per company se for “It the railroad to fail sound public crossing,
whistle rods from a but it does not excuse traveler eighty using injury (Syl. crossing.” 2.) care and caution avoid at such To these authorities be added those which hold the viola- tion of a city ordinance by railroads constitutes se. negligence per Co., (Williams 268, v. Electric 397; Railroad 102 Kan. 170 Pac. 1024; 232 Cooper 703, v. 117 Kan. Pac. Railway v. Griffith Atchison, 282, 687; T. S. F. 132 Rly. Kan. 295 Pac. Whitcomb v. 749, T. & S. F. Rly. 900; 280 Pac. File, 120, 323; McCausland 40 2d Kan. P. Richards v. Chicago, R. & 378, I. P. Rly. 2d 427.) Kan. P.
The purpose of these statutes is to
warn
trains
approaching
and not of trains
already
occupying
crossing.
(Corkhill
38,
Appellee Williams Railway Kan. 164 Pac. 260, to the contrary. case the court did not disturb rule of se for failure to sound negligence per the whistle but said the failure to do on so the facts was not the therq proximate cause of the injury. contends the
Appellee demurrer should be sustained because the evidence failed to prove actionable on the negligence part of railroad in these There particulars: was nothing to obstruct the trains; of persons view highway approaching there was no defect in the crossing; sign required board warnings by statute had been constructed and were good repair; speed lawful; train; train was motorist is under duty stop was due his injury plaintiffs negligence into the riding of the train the train side while occupying crossing. say, must these are not we
Again facts relied negligence *10 260 of train statutory the duty relies upon Plaintiff by plaintiff.
on is duty of this negli- The breach crossing. at a sound its whistle offered of demurrer purposes plaintiff se. For the per gence this of duty. evidence breach ample n usually per specific se” consists of the violation of a “Negligence [e], 1 (65 Negligence of law or ordinance. C. S. § requirement J. Phrases, 322; Jur., 158; 28 Negligence, Am. Words and 38 p. § Per “Negligence Se.”) per se” “negligence and “negligence” between distinction
The ascertainment, in that former must method of means evidence, the latter results while from jury found by be ordinance; of or and the requirement law specific violátion of is the commission or omis- jury fact determination of the for Phrases, required. (28 inhibited Words and act or of specific sion Se”, Per “Negligence p. 694.)
In this follow rule while the breach jurisdiction we se, per ordinance duty imposed liability law or in negligence cannot be violation the breach damages its unless predicated proximate the law or cause of injury ordinance is or dam Atchison; or ages, substantially contributes thereto. v. (Griffith & Co., S. T. F. Williams v. Electric Rly. supra; Railroad supra; & Cooper Railway Atchison, v. Whitcomb S. supra; v. T. F. Rly. Co., supra; Richards v. I. &R. P. Chicago, Rly. supra.) negligence contends the driver’s not the railroad’s
Appellee if the accident cause of as any, proximate negligence, & Chicago, Richards v. R. and relies on I. P. Rly. matter of law supra.
What cause? proximate Goodwin, 22,
We have often
it. In Atherton v.
defined
tinuous occurred, being injury injury injury without which not have would probable consequence wrongful (Syl. 3.) natural and act.” Manley estate against suit separately brought The Fe Company! Santa Railroad Topeka the defendant trial. them for court consolidated defendant, the Manley as to demurrer overruled the The court this appeal. in is not a question Manley’s negligence estate. negligently state that driver who been the rule It has long
261
an
be
crossing
joined
drives
front of
approaching
injuries
with
a defendant
company
railroad
received by
for their
passengers
concurring
Co. v. Du
negligence.
(Railway
rand,
380,
356;
Kan.
147,
69 Pac.
Kan.
Fliege
Railway
This is also the broad
general rule most jurisdictions. (Morgan
Hines,
The mere fact that the driver Manley been negligent and his negligence a proximate of cause the accident would in no wise excuse the concurrent negligence of the railroad if its breach of statutory was a duty also proximate cause of the accident. (Tag- gart v. Yellow Cab Co. Wichita, 156 88, Kan. 924; 131 P. 2d of Morgan Hines, v. supra.)
In the Taggart case
court
the
said:
appellants
liability
“Both
insist
any
established,
proximate
if
was
the
cause
negligence
of
appellant.
collision was
Both, therefore,
of the other
escape liability.
seek
speak
proximate
They
probably
of
cause,
is
which
accurately
legal
more
termed
procuring
or ‘the
cause’
and
efficient
cause.’
25, 37,
Corp.,
740.)
Shell
any
v.
Petroleum
149
(Cole
Kan.
86 P. 2d
event,
‘degree
culpability,’
neither
those
yardstick by
of
causes nor
of
is the
liability
joint tortfeasors,
party,
which
of
innocent
third
measured in
is
measuring
negligence.
actions such as this. The
device is concurrent
It is
apparent
would,
appellant
the acts
neither
could,
of
alone
have caused
Furthermore,
negligence
injury
by
occasioned
collision.
extent of
of
appellant
question is, therefore,
is
each
real
indivisible.
whether
negligence
appellants
resulting
of
concurrent
contributed
collision and
(Tilden Ash,
injury.
909,
614,
cited.)
145 Kan.
2d
v.
67 P.
therein
cases
also,
County Comm’rs,
574,
See,
577,
Neiswender v. Shawnee
151 Kan.
101
226; Hughes
Pittsburgh
Co.,
55,
153;
v.
300
2d
T.
Pa.
150
Carlton
P.
Atl.
v.
Boudar,
521,
negligence
clearly
118
In the Richards case of the the negligence cause was that the collision proximate and not riding was driver of the automobile which However, court of the case negligence railroad. jury fact for the worthy found the of consideration bearing upon train and this fact itself had no direct speed the accident question. not agreed The facts are distinguished. easily
The case here is those as particularly are in dispute, much very upon whistle, act upon by plaintiff. relied negligent blowing jury for the clearly in this case a matter Proximate cause cannot demurrer as a matter of law. be determined on evidence Was there contributory negligence?
What of the plaintiff court could determine on demurrer that which contributory a matter law. guilty negligence as cases cross involving many have cited to this appeal Both parties driver, par contributory negligence accidents and ing 403, Rly. S. F. 161 Kan. T. Horton v. ticularly Rld. P. 928; Union 2dP. Johnson Pacific we are authorities In this case persuasive. These are not 2d 630. *12 the of an automobile negligence concerned with a in passenger of a negligence not in the driver. contributory be of guilty could passenger, a plaintiff,
The safety care to for his own failure use due by: a (1) negligence automobile; where (2) joint enterprise under the in passenger a to him. imputed driver would be negligence the is riding of one who negligence contributory These bases for two distinguished discussed and passenger a were in an automobile as 70, v. 90 133 (Corley Railway Kansas case Kan. a leading in 555). Pac. husband, in an auto- riding was that case the Corley,
In crossing it. At a was driving a of a friend who guest mobile as Railway & Santa Fe Com- Topeka train the a of by struck for the killed. The sued all were occupants the pany loss of her husband. liability passengers cases of case reviewed the earlier
The
negli-
jurisdiction
rule
this
the
established
restates
well
263
of a driver
not
gence
is
imputed
one who is
in an
riding
automo-
a
bile as
passenger.
opinion
court said:
judgment
“The defendant further maintains that a
in its favor on
issue
contributory negligence
required
of
by
findings.
show
a
These
that at
twenty
distance of
by
feet from the track
could have been seen
preclude
deceased.
recovery
This would
managing
doubtless
a
if he had been
prudence required
approach
Reasonable
automobile.
driver
crossing
control,
with his car under
to look for the train as soon as he
in a
position
it,
stop
approach.
to see
and to
as soon as he knew its
What the
actually
shown,
ground
attributing
and there is
deceased
is not
no
for
to him
personally any
question presented
want
care.
The
is whether he
be
is to
chargeable
negligence
deemed
with the
of the driver. The doctrine
one
passenger
voluntarily
conveyance thereby
who
a
becomes
in a
so far identifies
injury
himself with
negligently
the driver that he can not
recover
an
inflicted
person,
negligence
contributing cause,
a
if
third
was a
driver’s
never
gained
country,
repudiated
much
a
England,
foothold in this
and is now
originated.
history
where it
of its
rise
decline is traced in a note in
A.,
s., 597,
gathered
8 L. R.
illustrating
n.
where
phases
cases are
all
of the sub
ject.
jurisdictions
Save in few
negligence
imputed
a
of a driver can not be
passenger
to a
who
(Note,
in fact has no
over
control
9
him.
A. & E. Ann.
408; Note,
1225;
Cas.
19
Note,
684; see,
A. & E. Ann. Cas.
Ann.
1913
Cas.
B.
also,
Co., ante, p.
Denton v.
51.)
applies
Railroad
This rule
in the case of
pleasure.
(29
guest
riding
Cyc.
a
who is
for their mutual
with
driver
548-
A.,
s.,
447,
550;
648;
Encycl.
Note,
448.)
7
R.
n.
A. E.
Where
L.
L.
enterprise, using
persons
engaged
conveyance
in a
two
are
common
for their
purpose,
responsible
other,
each
said
to be
for the acts of the
but for
situ
this
543;
equal right
(29 Cyc.
Note,
ation to arise each must have an
of control.
A.,
s., 628.)
present
jury
8 L. R.
n.
In the
case the
found that the deceased was
riding
guest
pleasure trip.
with
the owner of
automobile as
invited
successfuly
imputed
can
The defendant therefore
not
invoke
doctrine of
negligence.” (pp. 73, 74.)
This rule on imputed
has
negligence
seriously
ques
never
been
jurisdiction
tioned
and has been
in our
repeatedly
followed
decisions.
v.
(Anthony
194,
524;
96 Kan.
Kiefner,
Pac.
Denton
v. Railroad
812;
Kan. 498 155
Pac.
Burzio
Railroad
287,
351;
102 Kan.
171 Pac.
823,
Clark v. Railroad
115 Kan.
920;
Pac.
Bower
404,
420;
Railroad
106 Kan.
188 Pac.
Calvin
Receiver,
Schaff,
264 n senger. 624; Railway 709, Co., Kan. 64 Pac. v. Railroad 62 (Bush Withington, 88 v. 261; Williams 735, v. 66 71 Pac. Bussey, Co. Kan. Co., 498, Kan. 155 v. 97 Railway Denton 1148; 809, Pac. 129 Kan. Co., v. 555; Burzio 70, Kan. 133 Pac. v. 90 Corley Railway 812; Pac. Co., 104 Kan. Co., Railway v. Interurban Railway supra; Schaefer Co., 163, 744; Pac. v. 323; Kan. 186 Railway 106 Kirby 394, Pac. 179 269; Bradshaw v. 439, Co., Railway v. Kan. 223 Pac. Nevitt 115 515, Davis, Kan. Kessler v. 802; 111 475, Kan. Payne, 111 207 Pac. Co., Atchison, & S. 757, T. F. 799; 133 Kan. Hough Rly. v. 207 Pac. Co., 703, 1024; v. 499; 232 Pac. Cooper Railway 3 P. 2d 117 Kan. v. 769, Aldridge, Shepard Thomp- 639; P. Billings 133 Kan. 3 2d son, Aikman, 163 68, Heiserman v. 126; 153 Kan. 2d Kan. 109 P. Co., 333; Union 700, 2d Miller v. Pac. R. 252; 186 P. 2d 196 F. 192, Atchison, Co., Buechhein v. Rly. T. S. F. 2d 147 Kan. P. Co., Hooker v. 280; Missouri Pac. Rld. 762, 394; 2d 8 P. 134 Kan. Blue v. &T. 588; S. F. 635, Rly. 126 Kan. 270 Pac. v. Railroad 200, Ewing Rathbone 206, 334; 117 Kan. Pac. v. Railway 257, 259, Knight 109; 113 Kan. Railway Pac. 206 Pac. The cases are collected and dis- 893.) Billings v. through cussed up Aldridge, in Kansas Bar supra, Jour- nal 145. of the more cases cited of the duty passenger Two recent state the Thompson, Shepard language. the court said: supra, “Only upon deceased, comment that the brief need be made the fact husband appellee, of the auto. rule well established not the driver guest duty passenger this state that in an is under a exercise automobile precaution protection, reasonable care and he cannot for his own recover damages warning precaution give if he fails to exercise such and to danger. (p. 74.) driver of imminent . . .”
In Miller v. Union
R.
Pac.
the court said:
supra,
case,
mother,
kin,
parents
sought
“In this
father and
and next of
recovery
Miller,
son,
guest
for the death
was a
of their
Warren Dean
who
passenger
passenger,
duty
in the truck. As a
under the decisions
was his
precaution
protection.
Kansas
exercise
reasonable care and
for his
It
duty
approaching
was his
to look for
trains and
driver thereof.
warn the
Fail-
things
contributory negligence
part,
ure to do these
on his
would constitute
335.)
(p.
.
.
.”
deviation that it
be
presumed
has held
will
Kansas
without
And in
care for his
the ab-
safety.
exercises reasonable
person
to the contrary,
presumption
of evidence or circumstances
sence
a railroad track one will both look
to cross
venturing
is that before
*14
and listen before doing so. This
that a
both
implies
passenger
looked and listened and warned the driver of an
approaching
near the crossing. (Miller v. Union Pac. R.
Under the rule on demurrer to the evidence the is plaintiff guilty contributory negligence as a matter of law. The issues fact pertaining thereto must be determined by the jury. (Miller v. Union Pac. R. supra; Atchison, Hough T. & S. F. Rly. Billings v. Aldridge, Nevitt supra; supra; v. Railway supra, Interurban Railway supra.) Schaefer Is the plaintiff barred of because the recovery negligence of driver is to him imputed under joint enterprise?
The evidence before the court relative issue was the statements of the plaintiff and Matthews. Both testified that they were in a car pool with for the Manley purpose saving expenses and the necessity driving their cars every day. They testified also that the driver had the right pick his own route and that none of the riders had control over the manner in which he drove. Eslick,
The court said in
Schmid v.
It is so ordered. Under all the J., (concurring specially): facts
Schroedeb, the record presented circumstances in this case proximate fact for plaintiff’s injury question jury cause of remains It my opinion. is contended that even if the whistle had been sounded, the act of so doing would not further given any to plaintiff had, notice than what he al- already and which he had ready imparted to driver. sounds convincing This until other *15 evidence, not heretofore disclosed in opinion, is revealed. Matthews, discloses that plaintiff who were auto, the back seat of jested in with each riding other. The testified plaintiff on direct (Kendrick) examination: (the you reading did it What do with comic book was “Q. while prior accident)? riding automobile in the Akron, got (Tolliver Matthews) Well, up we and of course Tod “A. anyway, flipped always cutting up just and we I kind it over I were of, oh, lap, gesture comedian his like a would.” in as direct Matthews on examination testified: reading? you recall whether or not Donald Kendrick had been Do “Q. Yes, had he “A. been. quit? you know when he Do “Q. Akron, there, hit along around in think the book at I he Somewhere “A. me. did think he what? You “Q. book at think threw the me. I "A. you? at you threw the book mean What do “Q. lap. Oh, my over just tossed in it “A. you it? read Did “Q'. it, it seen had read Well, up and I I picked I looked I “A. back.” train, book turned around to throw the I noticed the I that’s when think who after boy, the shepherd fable of the moral in the old
Thus, but time truthful need in “Wolf” a second shouted alarm false one application may practical neighbors, his response without not compre- that driver (Manley) find A jury here. in passengers given by of the warning the significance hend conduct with each jesting their other because previous the auto Under such circumstances a the effect of him. misleading whistle, failure to sound a whether determine entitled to jury cause the injury. contributing proximate fact, awas be a this if of negligence with successive acts confronted court is not Here 100, 819 P. 2d but with con- Wright, Hickert v. in as negligence. acts of current
Whether conduct was sufficient to his jesting bar recovery on the ground contributory negligence, likewise remains for a jury determine.
Another circumstance evidence, indicated not heretofore disclosed, is significant. Several witnesses testified that one ap- proached the railroad crossing manner herein disclosed on day and at the time in question the sun such was in location that it shone directly into eyes driver, of a unless the eyes were shaded, when looking track up train in the direction from which was coming.
Taking into consideration all of the facts and circumstances dis- closed by the herein, record I fully concur in the court’s opinion. Parker, C. I (dissenting): concede this presents case close J. However, question. after all the reviewing evidence light in the of the rule in paragraph announced 2 of the syllabus, I have be- come convinced that under existing and circumstances facts negligence of the driver proxi- involved automobile mate tragic cause of this accident. I legal situation am should constrained to conclude trial court have sustained basis, hence demurrer to evidence on this dissent. *16 made disposition agree being I do not dissenting: J.,
Price, correctly demurrer was sustained. think that of this case proximate this crux of case litigants, these two between As that he establishes testimony affirmatively Plaintiff’s own cause. time for him slow ample the driver the train and warned saw not conced- Assuming, but went unheeded. warning stop. blown, the fact remains that had it been was not the whistle ing, further notice given any would the act of so doing blown had, he already and which already what than actionable, in order to be must Negligence, to the driver. imparted cause From evi- proximate injury. constitute the of an this debatable the sole cause of proximate dence it not even in driving collision driver negligence unfortunate was the into his automobile the side of the train. tends “to reached in case mold the decision
In my opinion function of courts is facts,” proper whereas to fit the law law! established light in the measure facts below, and therefore respectfully dissent. ruling affirm the I would