111 Kan. 515 | Kan. | 1922
'While C. A. Kessler was riding in an automobile belonging to and driven by Howard Shearhart the car was struck at a street crossing by the engine of a Missouri Pacific passenger train and Kessler was severely injured. He sued the federal agent who was in charge of the road and recovered a judgment, from which the defendant appeals.
1. The defendant asserts that there was no evidence that the railroad management was negligent in any respect. Four forms of negligence were alleged, and the jury specifically found that the defendant was guilty of all of -them: “Maintaining an improper crossing; maintaining obstructions on the right of way; approaching an obstructed crossing at excessive speed; failing to sound proper crossing signals.” There was evidence that the crossing was not maintained in conformity with the statute, but we find nothing to indicate that the collision was in any degree due to its defects. The petition charged that the view of the track from the street near the crossing was obstructed by unnecessary buildings, trees and fences. The plaintiff testified that his view of the approaching train was cut off by a section house on the right of way and by a curve in the track — that otherwise he could have seen up the track for a mile. This testimony practically took the other obstacles out of consideration in this aspect of the matter. The section house was a necessary and useful building. Its position on the right of way was a matter to be taken into account in connection with the obligation on the part of the railroad management to give signals and with regard to the question of contributory negligence, but we do not think it could alone constitute actionable negligence. (See Corley v. Railway Co., 90 Kan. 70, 71, 133 Pac. 555.) Therefore, the judgment could not be sustained upon either of the two grounds already discussed. Their elimination, however, does not warrant a reversal if either of the other two grounds of negligence is sustainable, and we think there was evidence to support both. Witnesses estimated the speed of the train at twenty to forty miles an hour. While other evidence tended to weaken this, the matter was one to be submitted to the jury, together with the question whether the rate found was in excess of what was reasonably prudent considering all the circumstances, including the distance of the crossing from the station — some 200 feet. Evidence of witnesses called by the plain
2. The defendant claims that the evidence conclusively established that the collision was due to the negligence of Shearhart, the driver of the automobile, which should be attributed to the plaintiff because the two were engaged in a common enterprise. There was evidence to this effect: The plaintiff and Shearhart were neighbors living near Edna. Each had a car. They frequently went to town together, sometimes in. one car and sometimes in the other. On the day of the accident Shearhart was going to town and asked the plaintiff to go with him. The plaintiff had some produce he wanted to take in, and accepted the invitation on that account. They reached Edna in the morning and stayed there until four or five o’clock in the afternoon, when they started home, the collision occurring while they were still in town. We do not think the evidence conclusively proved that the two were engaged in a common enterprise in such sense as to make the plaintiff chargeable with the negligence of Shearhart. That question was one,to be left (as it was) to the jury under proper instructions.
3. Under various assignments of error the defendant urges that judgment should be rendered against the plaintiff on the ground that his own personal negligence contributed to the injury. The rule is well settled that due diligence on the part of the driver of a vehicle requires him to assure himself that no train is approaching within a dangerous distance before attempting to cross a railroad, stopping for that purpose if necessary. The defendant takes the position that in the present situation the same obligation rested upon the plaintiff. We do not think it can be said as a matter of law that the plaintiff was negligent in failing to see to it that the automobile was stopped, assuming that to have been true of the driver.
4. -The plaintiff, however, was under a positive duty to take reasonable precautions for his own safety. Whatever else this may have involved, it required him to keep an outlook for a train, particularly on his side of the car, and to give the driver notice as soon as he discovered one. (Knight v. Railway Co., ante, p. 308, 206 Pac. 893; Kirby v. Railway Co., 106 Kan. 163, 186 Pac. 744.) As the two drove south on the principal street toward the rail
If the plaintiff’s account is correct this must be what happened: While he was 25 feet from the track he could and did see along-it to the west for 200 feet — the extent to which it was visible — but did not see the train because it was not yet within that distance; he kept on looking but the train did not come in sight — did not reach his field of vision along the track — until he was within 10 or 12 feet of the track, when owing to the imminence of the peril he could, do nothing more than to warn the driver. This version attributes what seems a most improbable speed to the train, but we cannot say it is impossible, or that if it is true the plaintiff was guilty of contributory negligence as a matter of law. Therefore judgment upon the evidence cannot be rendered against the plaintiff.
5. However, we think the defendant’s motion for a new trial should be sustained, for these reasons: The plaintiff’s case rests upon the theory that at a distance of 25 feet from the track he could only see a train approaching from the west if it was within 200 feet. He testified that at that distance he could see no further up the track because of the section house and because of the curve in the track. By a plat drawn to a scale the section house is shown to be about 125 feet west of the middle of the street and 19% feet north of the middle of the track. It is manifest that i-f these measurements are correct and they are supported by the other
6. The defendant submitted ten special questions. One of them called for the distance the occupant of an automobile could see. west up the track when he was distant from it 25 feet, 50 feet and 75 feet. The court treated this as three questions and refused to submit more than ten on that basis. The defendant then eliminated the^ question so far as concerned the 50 and 75 feet, and complains
Questions that have been raised with respect to instructions given and refused are practically disposed of by what has already been decided under other assignments.
The judgment was for $20,000. The defendant urges that the amount is excessive, and it appears to be very large; but inasmuch as a reversal is ordered upon other grounds it is not necessary to rule upon this question.
The judgment is reversed and the cause is remanded for a new trial.