100 Kan. 336 | Kan. | 1917
The opinion of the court was delivered by
On December 22, 1914, Jewell Nelson, a girl of sevénteen, while driving to school,'was killed at a gradé crossing by a passenger train of the defendant. Her mother brought this action to recover damages for the loss of her daughter’s services. There was a general verdict in plaintiff’s
The deceased lived with her mother and stepfather, Hugh Williams, on a farm in Gray county. She attended school at Ingalls, three miles distant, driving each morning in a one-horse buggy. The petition alleged that the horse was “a gentle family horse,” not afraid of trains. About 7:45 a. m. deceased started for school; the morning was cold and cloudy, and a heavy, low fog hung over the ground, which was covered with snow. Defendant’s track is south of the house, and to reach the crossing deceased had to travel 150 feet west, then 50. feet south to the public road, then southeast 125 feet. After leaving the house her view of the track until she arrived at the public road was more or less obscured by a number of cottonwood trees. The petition alleged that after deceased had reached the public road, and when about twenty-five feet from the crossing, she stopped her horse and observed the approach of the train from the west; that after her horse had stopped,- the engineer, without any necessity therefor, willfully, wantonly and negligently blew the whistle in short, sharp blasts in an unusual manner, at a point about 150 feet west of the crossing, negligently frightening the horse and causing it to leap forward upon the track in front of the train; and that before she could urge the horse over the track the train, running at a high and reckless speed, struck and killed her. It alleged that the engineer failed to blow the whistle or sound any signal at the whistling post eighty rods west of the crossing as required by law, and that by reason thereof deceased was unáble to hear the train until it was almost upon her. There was a further charge of negligence in having the engine in bad repair so that leaking steam escaped in large quantities, obscuring the engineer’s view of the deceased while she was approaching the track. In addition to the actual damages sustained, punitive damages were asked on account of the willful and wanton acts of the defendant.
The opening statement of the plaintiff followed the allegations of the petition. The stepfather of Jewell Nelson testi
“After she stopped the horse went about twenty or twenty-five feet and it just got across the track. At first Jewell seemed to kind of pull back, and then she began just kind of whipping the horse. The horse was on the jump, going just as tight as it could, and she was whipping it to make it go a little faster. . . . The horse jumped at the first blast of the whistle. ... I should judge the engine was 250 feet away when it first blew the whistle.”
These witnesses had testified before the coroner’s jury and had made statements to a claim adjuster of the defendant shortly after the accident, and the defense offered in evidence the testimony taken at the inquest and testimony of the company’s claim adjuster as to statements made to him by the stepfather, for the purpose of contradicting the account of the accident as given at the trial. The engine crew in charge of defendant’s train testified that the crossing whistle was blown at the post eighty rods west of the crossing. The engineer testified that from his position in the cab he did not see the buggy until after the accident; that there was nothing to prevent a person from seeing the train on that morning for a distance of a mile or more from the crossing; that he gave the warning signals when the fireman spoke to him of the danger.
“1. If you find for the plaintiif then state wherein the defendant was negligent. Failed to whistle at the signal post.
“2. Was not the track of the defendant for a mile or more west of the crossing straight and on ground nearly level? Yes.
“3. Could not a person as soon as he entered upon the right of way have an unobstructed view of the track for a mile or more? No, because of fog.
“4. How far west could a person located 24 feet north of the right of way line, on the highway crossing the railroad, see the tracks, or a train on the same? Six hundred feet.
“5. Did the deceased stop on the road before going across the track? Yes.
“6. When and where did the deceased first become aware of the approach of the train? Just before she stopped about twenty or twenty-five feet north of the track.
“7. What, if anything, prevented her from seeing the train, when she was twenty or more feet north of the right of way? Obstructed by tree and also by fog.
“8. Did the deceased look and listen for an approaching train, as soon as she reached a position where she might have known of its approach? Yes.
“9. What if anything prevented her from doing so? Nothing.
“10. Did the engineer, as. soon as he was aware of the approach of the deceased, blow an alarm and apply the air to his train? He blew the alarm and applied the air as soon as he became aware of danger.
“11. Did the engineer give the crossing signal as he passed the signal post? No.” i
“Where a recovery is sought by reason of several negligent acts of the defendant, and the jury in answer to a special question finds that the negligence upon which they base their verdict is a certain single act of the defendant, the finding in effect acquits the defendant of every charge of negligence alleged in the petition or mentioned in the evidence except the one specifically designated in the finding.”
In Adams v. Railway Co., supra, it was said: “The defendant had the right to know from the jury itself the fault or faults attributed to it, if it were found to be at fault. (Cole v. Railway Co., 92 Kan. 132, 139 Pac. 1177, and cases cited in the opinion.)” (p. 481.) To the same effect see: Broadhead v. Railway Co., 97 Kan. 222, 155 Pac. 20.
“Of course, if the plaintiff knew that the train was coming he needed no warning of such fact, and the omission to sound the whistle will not create a liability when such omission or neglect of duty did not in any way contribute to the injury.” [Citing] (A. T. & S. F. Rld. Co. v. Morgan, 31 Kan. 77, 1 Pac. 298.) (p. 440.)
We deem it wholly unnecessary in this case to elaborate upon the doctrine of proximate cause. The finding is that the deceased saw the approaching train when she was at a safe distance from the crossing. She was-.driving an old and gentle horse. Whether because of contradictions between the testimony given at the trial by some of plaintiff’s witnesses and
It follows that the judgment must be reversed and the cause remanded with directions to enter judgment on the special findings in defendant’s favor.