104 Kan. 394 | Kan. | 1919
The opinion of the court was delivered by
This action for damages records another railway-crossing accident.
The plaintiff was traveling eastward on a public highway. He drove a Ford automobile, and his wife rode by his side. Defendant’s interurban railway crossed this highway diagonally southeast and northwest. As plaintiff and his wife were crossing this railway track, his automobile was struck by defendant’s northbound interurban car, and his wife was killed.
Because of plaintiff’s contributory negligence he was non-suited as to his own claim for damages for the death of his wife; but the trial court permitted a recovery of $1,000 in behalf of his minor children for their loss in the death of their mother, on the theory that she herself had been free from negligence.
No motion for a new trial was filed, appellant preferring that its appeal should be limited to a review of such errors of law as may inhere in the record and judgment.
Certain special questions were answered by the jury:
“1. Did not the deceased, Roxy Ann Schaefer, being seated on the front seat of the automobile and on the side from which the interurban car approached the crossing and not being engaged with the operation of the automobile, have a better opportunity of seeing the approaching interurban car than the plaintiff? Answer: The same opportunity.
- “2. Did the deceased, Roxy Ann Schaefer, look for the approaching interurban car after passing the point 25 feet west of the interurban track Answer: Yes.
“3. Did the deceased, Roxy Ann Schaefer, warn the plaintiff of the approach of the interurban car before the automobile went upon the interurban tracks? Answer: No. . . .
“4. State the distance the interurban car approaching from the southeast could have been seen by a person looking for the same seated in the*396 front seat of a Ford automobile in the public highway — (a) 25 feet west of the center of the interurban track? Answer: Can’t say.
“(6) 30 feet west of the center of the interurban track? Answer: Can’t say.
“(c) 82 feet west of the center of the interurban track? Answer: 590 feet to 1,250 feet.
“(d) 132 feet west of the center of the interurban track? ' Answer: % to mile.
“5. Could the interurban car approaching from the southeast be seen by a person seated in the front seat of a Ford automobile upon the public highway—
“(a) 11 feet west of the center of the interurban track? Answer: In our judgment it could.'
“(b) 15 feet west of the center of the interurban track? Answer: Doubtful.
“(c) 20 feet west of the center of the interurban track? Answer: No.
“6. In what distance could a Ford automobile containing two people on the front seat approaching the crossing in question at a speed of not more than six miles per hour on the public highway from the west be stopped after reaching a point twenty-five feet west of the center of the interurban track? Answer: 4 feet.
“7. Could a person seated in the front seat of a Ford automobile in the public highway 120 to 125 feet west of the center of the interurban track see the interurban car approaching from the southeast? Answer: Can’t say. ...
“8. If you find the defendant guilty of any act or acts of'negligence which approximately caused the accident in question state what such act or acts of negligence were. Answer: Allowing trees and shrubbery to grow upon right of way and apprQaching a dangerous public crossing at a high rate of speed.
“9. What was the purpose of the plaintiff and the deceased in traveling in the automobile on the day of the accident? Answer: Going home.
“10. Was it the habit or custom of the deceased, Roxy Ann Schaefer, in driving with her husband in the Ford automobile, to keep a lookout for approaching cars at railroad crossings? Answer: Yes.
“11. Who in the Ford automobile first saw the interurban car approaching the crossing prior to the accident, the plaintiff or his wife? Answer: Wife. ...
“13. Was the deceased, Roxy Ann Schaefer, familiar with the crossing in question and the approach to the same? Answer: Yes. . .
“15. If you answer question 2 in the affirmative, state how many feet west of the center of the interurban track deceased, Roxy Ann Schaefer, looked for the car approaching? Answer: No evidence.”
1. Defendant contends that the acts of negligence found by the jury were not the direct and proximate cause of the accident. The negligence found by the jury was “allowing trees and shrubbery to grow upon right of way and. approaching a
The trial court gave this instruction:
“21. If the defendant discharged its duty of keeping its right-of-way adjacent to a public road that crosses its right of way free from obstruction such as trees and shrubs and discharges all the other duties imposed upon it, then as far as a traveler on a public road about to cross its track is concerned, it can run its cars at as high rate of speed as it desired, and the rate of speed, no matter how high it may be, is not an act of negligence so far as such traveler is concerned and cannot be the basis of an action'for negligence by such traveler; but if the defendant negligently permits trees and shrubbery to stand upon its right of way adjacent to a public road that crosses its track, so that the view of a traveler as he approaches the track is obstructed thereby, then it is the duty of the defendant to use due care in the operation of its cars having in mind such obstruction, and to run them at such a rate of speed in approaching such highway crossing as to avoid doing unnecessary damage to those lawfully and properly using the same or about to use the same.”
While high speed alone is not negligence, it may be and should.be considered in connection with other circumstances, such as the physical condition of the crossing and the topography of the immediate vicinity, in determining whether the railway company was exercising due care in operating its interurban car, and due care or the want of it in this case depended to some extent upon the speed at which the defendants approached this dangerous crossing.
“Where the railway company permits needless obstructions to the view on its depot grounds, it is its duty to operate its trains with reference to such obstructions, and in such manner that travelers crossing the track on the highway, from which the view is so obstructed, may, by the exercise of ordinary care, avoid injury from such trains.” (syl. ¶ 2.)
(See, also, Railroad Co. v. Willey, 57 Kan. 764, 48 Pac. 25; Corley v. Railway Co., 90 Kan. 70, 71, 72, and syl. ¶ 1, 133 Pac. 555; Artz v. The C. R. I. & P. R. R. Co., 44 Iowa 284; The Terre Haute and Indianapolis R. R. Co. v. Clark, Administrator, 73 Ind. 168; and Note in 22 L. R. A., n. s., 232.)
But persons in complete and independent control of their own movements, who are about to cross a railway track, like pedestrians and drivers of horse vehicles and automobiles, will hot be permitted to recover against a negligent railway company unless they themselves are free from negligence. (A. T. & S. F. Rld. Co. v. Priest, 50 Kan. 16, 23, 31 Pac. 674; Railway Co. v. Wheelbarger, 75 Kan. 811, 88 Pac. 531; Wehe v. Railway Co., 97 Kan. 794, 56 Pac. 742; Williams v. Electric Railroad Co., 102 Kan. 268, 170 Pac. 397.)
There is a somewhat different- rule which applies to persons riding in a buggy or automobile who have no control of the vehicle. While such persons are charged with the duty of looking out for their own safety as far as practicable (Bush v. Railroad Co., 62 Kan. 709, 64 Pac. 624; Railway Co. v. Bussey, 66 Kan. 735, 71 Pac. 261; Bressler v. Railway Co., 74 Kan. 256, 86 Pac. 472; Fair v. Traction Co., 102 Kan. 611, 171 Pac. 649; and Note in 54 L. R. A., n. s., 1915 B, 955 et seq.), yet they are not necessarily negligent merely because their driver is negligent. (Williams v. Withington, 88 Kan. 809, 129 Pac. 1148; Denton v. Railway Co., 90 Kan. 51, 133 Pac. 558; Denton v. Railway Co., 97 Kan. 498, 155 Pac. 812; Corley v. Railway Co., 90 Kan. 70, 133 Pac. 555; Burzio v. Railway Co., 102 Kan. 287, 171 Pac. 351.)
Here one of the elements of negligence was that of allowing trees and shrubbery to grow on the right of way near the crossing. The trees and shrubbery served no useful purpose of the railway company, and therefore their -existence required a higher degree of care in the operation of a train or trolley car than would be imposed if the obstructions to the view were
Fo'ur photographic exhibits of the surroundings, showing the trees, the crossing, and the defendant’s railway track for varying distances up to half a mile or further, which were admitted in evidence and their authenticity scarcely disputed, are incorporated in defendant’s abstract. These photographs tend strongly to prove that if the deceased had been looking out for her own safety she could not have failed to see the approaching trolley car; and they tend strongly to prove that the evidence for plaintiff was not true. But there is no rule which permits appellate courts to disturb a .jury’s findings because highly convincing photographic evidence may seem to overbalance the parol or other evidence to the contrary. Photographs are simply evidence and can receive no peculiar consideration on appeal; and this is particularly true where, as in this case, the defendant chose not to ask for a new trial on the ground of the verdict being contrary to the evidence. The court cannot avail itself of this photographic evidence to disturb the jury’s findings as to the proximate cause of the accident. (Corley v. Railway Co., 95 Kan. 124, 147 Pac. 842. See, also, Pittman v. Hayes, 98 Kan. 273, 276, 277, 157 Pac. 1193; Kirsch v. Telegraph Co., 100 Kan. 250, 254, 255, 164 Pac. 267.)
. 2. Was the deceased guilty of contributory negligence? Ordinarily that, too, is a jury question. The court cannot say as a matter of law that because the deceased could have seen the trolley car while she was 132 feet from the crossing, and while she was 82 feet from the crossing, and failed to warn the driver, that she was guilty of contributory negligence. Nor does the fact that she could have seen the trolley car at 11 feet from the track and that the Ford car could have been stopped
Since the burden was on the defendant to prove the contributory negligence of the deceased, and to prove that the deceased could have seen the car within a reasonable distance of the crossing, in time to warn the driver of the approaching danger, the jury’s findings, “Can’t say” and “Doubtful,” in response to questions touching her range of vision at 15 feet, 25 feet, and 30 feet, must be construed as a failure on the part of defendant to prove that she could see the car at those distances. The court cannot say that the legal effect of the jury’s special findings makes a case of contributory negligence against the deceased, and this conclusion requires an affirmance of the judgment.
Judgment affirmed.
