Opinion
No. 21267.
April 3, 1950.
APPEAL FROM THE CIRCUIT COURT OF HENRY COUNTY, DEWEY P. TATCH, J.
C. A. Calvird, Clinton, David Trusty, Kansas City, Sam Mandell, Kansas City, Popham, Thompson, Popham, Mandell Trusty, Kansas City, of counsel, for appellant.
E. G. Nahler, St. Louis, Thos. E. Deacy, Kansas City, Haysler Poague, Clinton, Ray L. Shubert, Harrisonville, Milligan, Kimberly Deacy, Kansas City, Poague, Poague Brock, Clinton, for respondent.
Appellant, as plaintiff, brought this action in the Circuit Court of Cass County, Missouri, from which, on change of venue, it went to the Circuit Court of Henry County. It is a cause of action for damages to person and property, arising out of a collision on a railroad crossing on Highway 50, near Burrton, Kansas, between a freight train of the defendant (respondent) and an automobile which the plaintiff was driving at the time. The case was submitted on the last clear chance doctrine of the State of Kansas, and the verdict and judgment were in the plaintiff's favor in the sum of $5000. Thereafter, upon motion of the defendant, a new trial was awarded, the verdict and judgment were set aside and a judgment entered in favor of the defendant. Plaintiff appealed.
The part of plaintiff's petition on which he submitted his case alleged that he "was in a position of imminent and inescapable peril from the movement of said train and that defendant knew, or by the use of due care could have known thereof in time thereafter, by the use of ordinary care and with the use of the means at hand and with safety to the train and those on it, to have stopped said train or slowed its speed and thereby have prevented said collision and defendant negligently failed so to do, and that as a direct result of defendant's failure so to do, this collision occurred and plaintiff was injured and his automobile damaged". The answer was a general denial and a charge of contributory negligence.
Plaintiff's evidence tended to show that for some years he had been engaged in the business of servicing and repairing automobiles, including brakes and brake systems; that he had driven automobiles for many years; was familiar with the mechanical construction and operation of automobiles; that he had had experience in driving on concrete highways, both wet and dry; that he had owned and operated the car in question for two and a half years; that on the day in question the brakes of the car were in good condition; that he had had no difficulty with the steering apparatus, nor with any skidding or sliding of the car; that the car was generally in good condition; that his windshield was clear, his vision and hearing were good. Plaintiff testified that about 5:15 p. m. on May 18, 1946, he picked up three passengers in or near Wichita, Kansas, and they were intending to drive to a social gathering at Hutchinson; that as they were traveling on Highway 50, at 40 or 50 miles an hour on the concrete slab of that highway, 18 to 20 feet wide, they approached the scene of the accident. It was daylight. He did not notice a highway railroad warning sign on the right hand side of the highway some several hundred feet east of the crossing, nor did he notice the large crossarm railroad warning sign east of and near the crossing; that he heard no bell, whistle, or noise of any approaching train from the north. The crossarm sign could be seen from a quarter of a mile east on the highway. There was a shelter belt of trees to his right and about 30 feet north of the highway, beginning several hundred feet east of the crossing and extending to within about 104 feet of the railroad crossing. This shelter belt was about 100 feet thick, extending also northward along the east side of the railroad tracks. The trees in the shelter belt were in full foliage and the view through them was thereby obstructed. There was no car in front of the plaintiff between him and the railroad crossing, and the highway was straight and was wet, or at least damp. He had driven through several showers on the trip. There was a road leading from the highway to the left and about 25 feet east of the crossing.
Plaintiff testified that the first knowledge he had that he was approaching a railroad crossing was when he saw the engine coming from the north and into view beyond the west end of the shelter belt of trees. He estimated that he was then about 175 to 200 feet from the main line of the crossing on which the train was running, and approaching at about 15 miles an hour, which was not decreased before the collision. One of the parties in the plaintiff's automobile exclaimed that there was a train approaching, and the plaintiff jammed on his brakes and succeeded in reducing his speed down to 15 miles an hour before reaching the crossing. He did not turn left from the highway on the road above described. He said he believed had he attempted to do so his car would have overturned. He testified that after he applied his brakes his car swerved and he lost control over it. It was his judgment that if he had not lost control of the car he could have stopped before reaching the crossing. He could not recall whether he depressed the clutch when he applied his brakes or whether the car was still in gear, but remembers turning his steering wheel from side to side. He said the brakes were good enough to lock the wheels and cause them to slide, but did not recall whether he applied them sufficiently to cause them to do so. After the collision the car was still on the highway, and the rear end of the train was some 30 feet south. There was evidence that such a train, consisting of an engine, tender, caboose and four loaded freight cars, traveling 15 miles an hour, could be brought to an emergency stop within 100 to 110 feet from the instant the fireman called for such a stop, and within 125 to 150 feet while traveling at 20 miles an hour.
Plaintiff, on cross-examination, was asked: "Q. Now, was it because the road was damp and slick that you couldn't stop before you got to the track? A. I don't know whether it was that or whether it was the brakes or speed or what it was.
"Q. You don't know whether it was your high speed or your brakes or the road condition, is that right? A. No, sir.
"Q. So you don't know whether it was the speed at which you were traveling at the time you applied the brakes that caused you to lose control or not? A. No, sir, I couldn't swear to that.
"Q. If you hadn't lost control of that car you could have stopped, couldn't you, before you got to the track? A. To my best judgment. I don't know, I never have attempted it under emergency, sir.
"Q. I don't know what you mean when you say you lost control. Can you tell us what you mean? A. Well, in my opinion when I lost control of the car I wasn't able to make it behave the way I wanted it to, I couldn't steer it properly or I couldn't make it stop like I wanted it to, I didn't have control to make the car go where and when I wanted it to."
There was some evidence by witnesses for the plaintiff that the car had skidded, but the distance was indefinite. The evidence showed that the automobile, with great force, contacted the engine at its cylinder housing near the front left wheels and about 12 feet back from the front of the engine, and the automobile was wrecked. The plaintiff and other passengers were severely injured, one of them fatally.
There was testimony on the part of defendant's fireman to the effect that when the front of his engine was 25 feet north of the highway, he saw plaintiff's car approaching about 175 feet east of the crossing at about 70 miles an hour; that he immediately called to the engineer to "big hole it", meaning to make an emergency stop; that the automobile continued to approach the crossing, and when within 70 feet of it, the automobile crossed over the center line, and skidded a time or two, and then straightened out and proceeded forward to the point of collision. He said the front end of the engine was then south of the south edge of the highway, and that the train was stopped within 300 feet after the emergency brakes were applied. He stated that the train had been running 35 miles an hour when a service application of the brakes had been made 1300 feet to the north, and the speed had been reduced from 15 to 20 miles an hour at the time of the collision. He said that the reduction of the air pressure on account of the service application had been regained when the emergency application was made. The crew measured certain skid marks which extended some 87 feet east of the crossing. There was evidence that the railroad crossarm could be seen for a considerable distance on the highway to the east, and that both whistle and bell had been sounded for about two city blocks north of the highway as the train approached the crossing. All of the defendant's witnesses, including state patrolmen, who were at the scene of the accident at the time or shortly thereafter, testified that the highway was entirely dry and that there had been no rain there until after the accident.
The trial court sustained defendant's motion for a new trial on the grounds that (1) Because plaintiff's own evidence disclosed that plaintiff was guilty of negligence which directly caused or contributed to cause the collision mentioned in evidence and because plaintiff's negligence continued up to the time of the collision between plaintiff's automobile and the train. (2) Because the evidence failed to establish a submissible last clear chance case under the law of Kansas. (3) Because plaintiff was not entitled to recover under the law of Kansas. (4) Because the court erred in overruling, over the objection and exception of defendant, the motion filed by defendant for a directed verdict at the close of all of the evidence in the case and in refusing to sustain defendants' motion for a directed verdict and in overruling and denying same and in failing and refusing at the close of all of the evidence in the case to order and direct the jury to return a verdict for defendant and against plaintiff as prayed in the written motion for a directed verdict filed by defendant at the close of all of the evidence. (5) Because the Court erred in giving to the jury, over the objection of this defendant, instruction No. 1 as offered by the plaintiff. Thereafter, the court sustained defendant's motion to set aside the verdict and judgment and for entry of judgment for defendant in accordance with its motion therefor made at the close of the evidence, upon the following grounds: (1) The evidence discloses and establishes that plaintiff was guilty of contributory negligence as a matter of law and that plaintiff's own negligence directly caused or contributed to cause the collision between plaintiff's automobile and the train mentioned in evidence. (2) The evidence fails to establish a submissible case or a claim upon which relief can be granted in favor of plaintiff and against defendant. (3) The evidence fails to establish a submissible case against defendant under the last clear chance doctrine under the law of Kansas. (4) The evidence fails to establish any of the allegations of negligence contained in plaintiff's petition. (5) The evidence fails to establish that defendant herein in the exercise of ordinary care could have avoided a collision between plaintiff's automobile and the train mentioned in evidence after plaintiff's negligence had ceased and the evidence establishes that plaintiff's negligence continued up to the time of the collision mentioned in evidence and that plaintiff's own negligence directly caused or contributed to cause such collision. (6) The evidence fails to establish that defendant, his agents, servants and employees were guilty of any acts of negligence which caused or contributed to be caused the collision mentioned in evidence.
Plaintiff's first two points on appeal, combined, are that the court erred in ruling that plaintiff failed to make a submissible case under the last clear chance doctrine of Kansas, and in holding that plaintiff's contributory negligence, as a matter of law, continued to the time of collision and barred recovery under the law of Kansas.
In considering the points here raised it is necessary to keep in mind and to apply the law of the state of Kansas on the principles involved. In that state, railroad trains are given the right-of-way where their tracks cross public highways. A railroad crossing is itself a warning to travelers on the highway, and "there is a presumption that persons approaching a railroad crossing will use due care before proceeding to cross". Ross v. Chicago, R. I. P. Ry. Co., 165 Kan. 279, 194 P.2d 491, 492. Such duty is a continuing one. A railroad crossing sign is sufficient to charge the occupants of an automobile with knowledge of the approach to a railroad track and failure to heed the same when visible is contributory negligence. Coleman v. St. Louis-San Francisco R. Co., 130 Kan. 325, 331, 286 P. 254, 257. Approaching a railroad track at a speed of 30 or 35 miles an hour without precaution to ascertain if a railroad track is ahead when warning signs of the track can be seen and a part of the tracks are visible for a sufficient distance to enable the driver of a car to stop short of the track, is sufficient negligence to bar recovery. Heinen v. Atchison, T. S. F. R. Co., 125 Kan. 612, 615, 616, 266 P. 35. The duty to avoid getting run into at a railroad crossing in the open country is chiefly imposed upon the persons who seek to cross the railroad track. Bunton v. Railroad Co., 100 Kan. 165, 169, 163 P. 801. The duty of the motorist in approaching a railroad track "to look and to keep the car under such control that it could be stopped continued until it was on the point of going upon the railway track". Gage v. Atchison, T. S. F. R. Co., 91 Kan. 253, 137 P. 938, 939, Ann.Cas. 1915B, 410; Horton v. Atchison, T. S. F. R. Co., 161 Kan. 403, 168 P.2d 928. "No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing". Section 8-532, 1947 Supp. to General Statutes of Kansas, 1935.
It is not denied that plaintiff in the instant case was negligent in approaching and entering into a zone wherein there was danger of collision at the railroad crossing. It is evident at least that he failed to see or heed the crossing signals which were effectively located and plainly visible. In fact, by submitting his case on the last clear chance theory under the law of Kansas, the plaintiff's contributory negligence is presupposed up to the place of inextricable peril. Murphy v. Atchison, T. S. F. R. Co., 353 Mo. 697, 183 S.W.2d 829.
But the plaintiff's contributory negligence ceases to become a complete defense in a case under the last clear chance doctrine of Kansas when he reaches a position of peril from which he is unable, by the exercise of reasonable care, to extricate himself. The definition of the last clear chance doctrine of Kansas and the effect of the plaintiff's contributory negligence in such cases are clearly set forth by the Supreme Court of Missouri in Trower v. Missouri-Kansas-Texas Railroad Co., 347 Mo. 900, 149 S.W.2d 792, 796, where the court repeated and approved its statement made in former cases, as follows: "`* * * under the law of Kansas a plaintiff's contributory negligence ceases to be a complete defense only when such plaintiff is in helpless peril, that is, in a condition of peril from which he cannot by the exercise of reasonable care extricate himself. So long as the plaintiff has the power to avert the danger by using reasonable care, it is his duty to do so, and his failure to so do is negligence concurrent with and contributory to that of the defendant and bars recovery. The same idea is expressed in saying that the last chance doctrine begins to be applicable only when plaintiff's contributory negligence is at an end. In a railroad crossing case, the plaintiff's contributory negligence ceases only when he or she has progressed so near to the railroad track that it is practically impossible to avoid a collision by the means at hand. The plaintiff is then in helpless or inextricable peril, is no longer negligent, and previous negligence in going into such position is wiped out, and, if the defendant yet has the ability to avert the collision by due care and the means at hand, and fails to do so, it is liable. This, as we understand it, is the Kansas last chance doctrine. It is not limited, however, to an actual seeing or discovery by defendant of the plaintiff's helpless peril, but includes such peril as defendant could discover by due care and vigilance. * * * We therefore think that clearly the Kansas doctrine of last clear chance is based on and limited to cases where the plaintiff is in helpless or inextricable peril, though so placed by his own negligence, and the defendant discovers, or ought to discover, him in that condition, and yet has the ability by due care and the means at hand to avoid the injury, but fails to do so.'" (Italics supplied.)
Assuming, as we must, the plaintiff's negligence in this case as he approached the railroad crossing, his negligence is deemed not to have ceased before he reached the point of collision, thereby barring his recovery, unless there is evidence that "he progressed so near to the railroad track that it was practically impossible to avoid a collision by the means at hand", and was in a position of inextricable peril and became so at a time and under circumstances which afforded the defendant the ability to avert the collision by due care and with the means at hand, whether the defendant actually discovered the plaintiff in such position or could discover it by due care and vigilance. Whether or not the plaintiff became in such position of peril from which, by the use of reasonable care, he was "unable" to extricate himself with the means at hand or was "helpless" or in which it was practically impossible to avoid the collision with such means, constituted an ultimate fact to be determined by the jury upon other facts in evidence. That very essential element of plaintiff's case cannot be determined upon conclusions of witnesses.
What were the facts in evidence bearing on plaintiff's helplessness and inability to extricate himself from his position of peril and by the use of reasonable care, to avert the collision? For several years he had serviced and repaired automobiles, including brakes and braking systems; had driven cars for many years; was familiar with the operation and mechanical construction of automobiles; had driven cars on both wet and dry concrete highways; had owned and operated the car in question for two and a half years. He said that on the day of the accident his brakes were in good condition; had had no trouble with the steering gear or with skidding or sliding; that the brakes were good enough to lock the wheels although he did not remember whether he pressed the brake sufficiently to cause the wheels to slide. He said he first realized that he was approaching the railroad crossing when he was within 175 to 200 feet of it and then the train was about the same distance from it. He was traveling 40 or 45 miles an hour and the train about 15. Someone in the car yelled: "My God, a train", and plaintiff jammed on his brakes, at the same time swerving his car from left to right and reducing his speed to 15 miles an hour before reaching the crossing. There was no car in front between plaintiff and the crossing. He did not remember that the brakes grabbed, nor whether he released the clutch. He did not turn off to the left on a road which was 25 feet east of the track. There was evidence that he skidded before reaching the crossing and up to the track, although his car did not leave the concrete slab, which was 18 or 20 feet wide. He said he did not know why he was unable to stop before reaching the track, whether it was because of the brakes, speed or road conditions, but that he just "lost control", and that if he had not lost control, he believed he could have stopped short of the crossing. He was asked what he meant by the statement "lost control", and answered: "Well, in my opinion, when I lost control of the car I was unable to make it behave the way I wanted it to, I couldn't steer it properly or I couldn't make it stop like I wanted it to do, I didn't have the control to make the car go where and when I wanted it to".
Thus it is apparent that there was no substantial evidence of facts from which the jury could determine whether the plaintiff was in fact "helpless" or "unable", with the means at hand, and by the exercise of reasonable care, to extricate himself from danger or to avoid the collision, or had, in fact, "lost control". He testified to the ultimate fact and gave no evidence to support his conclusions. If his own evidence disclosed no fact to establish his inability to avert the collision, the jury could not find such inability on surmise or conclusion. Had there been testimony of some defect in the car, or in the condition of the road, or traffic, or of some sudden disablement of his physical or mental faculties, or other fact from which plaintiff's alleged "helplessness" or "inability" to escape by the exercise of due care might be concluded, the jury could properly have determined such issue, and could have determined whether the plaintiff's negligence had ceased, as he claimed. In such a situation of the proof, it would make no difference if the defendant's concurring negligence was also established, which we do no need to determine, since it was incumbent upon the plaintiff to establish that his own contributory negligence had ceased before the collision. We are forced to rule, therefore, that in the absence of such evidence, the plaintiff failed to make a submissible case for lack of proof that his own negligence had ceased and that he was unable "to avert the collision by due care and the means at hand". Trower v. Railroad, supra.
It follows that the court did not err in sustaining the defendant's motion to set aside the verdict and judgment, and did not err in entering judgment for the defendant on its motion therefor, in accordance with defendant's motion for a directed verdict made at the close of the evidence. In view of the foregoing it is not necessary to discuss the alleged errors in plaintiff's Instruction 1.
Plaintiff finally complains that the court erred in refusing his Instruction A. Since he filed no motion for new trial and took no appeal from the verdict nor from the judgment on the verdict, this point cannot be entertained.
Judgment affirmed.
All concur.