The opinion of the court was delivered by
Horton, C. J.:
This was an action brought by John W. Morgan against the railroad company to recover for personal injuries; also, for the killing of a pair of horses owned by him, and for damages to his wagon and harness. The material facts in the case are as follows: On the 7th day of December, 1885, about noon, Morgan, while attempting to cross the track of the railroad company at a public crossing with his team and farm wagon on Main street, in the village of Walton, a small place of two hundred and fifty inhabitants, in Harvey county, in this state, was struck by the rear end of the tender of a railroad engine, running backward through the village and over the crossing at a high rate of speed — thirty miles an hour: his wagon was making some noise. He was severely injured, his horses were killed, and his wagon and harness broken. He was thirty-seven years of age, a farmer by occupation, and had been familiar with the road and crossing for nearly four years. He attempted to cross the railroad track to reach a coal yard to obtain a load of coal. He approached the crossing from the west and north. The depot at Walton, a small, low building, was six hundred feet west of the crossing. A few feet from the crossing, in the direction from which the engine came, two side-tracks gradually diverged from the main track for some little distance, and then paralleled it. Along the south side of the track there were two or three buildings, the depot being between the main track and the side-track running south of it. At the time Morgan attempted to cross the track it was snowing very hard, and the wind was blowing a gale. When he approached the crossing he looked both ways several times, up and down the track, and did not [10]*10see any engine or cars. When he was within forty or fifty feet of the crossing there were no obstructions immediately upon the track, or on the north side of the track, to a view of the track for several hundred feet west, if the day had been clear.
It may be assumed from the evidence and findings of the jury that the whistle of the engine was not sounded, nor the bell rung, nor any other signal given by the employés operating the engine as it approached the crossing where the injuries occurred which are complained of. In many things the testimony of the witnesses is conflicting, but it was the province of the jury to determine the question of veracity between the witnesses, and therefore all matters supported by the testimony found in favor of the plaintiff by the verdict or special findings must be considered as having been proved. The negligence of the railroad company must be regarded under the testimony and verdict as having been established.
The most important question presented in the case is, whether Morgan is to be denied any damages for his injuries on account of his alleged contributory negligence. In other words, was it error for the district court to submit the question of his contributory negligence to the jury ? Within the decisions of this court, we do not think we can say as a matter of law that contributory negligence was so clearly established upon the part of the defendant that he cannot recover; and therefore it was not error to refuse to withdraw from the jury the question of his contributory negligence. (L. L. & G. Rld. Co. v. Rice, 10 Kas. 426; K. P. Rly. Co. v. Richardson, 25 id. 391; W. & W. Rld. Co. v. Davis, 37 id. 743.)
U. P. Rly. Co. v. Adams, 33 Kas. 427, and A. T. & S. F. Rld. Co. v. Townsend, 39 id. 115, are cited against the recovery of any damages. These cases do not apply. In the former, the parties who were familiar with the highway and crossing drove up in a two-horse wagon upon a trot in plain view of the railroad track, without stopping to listen or look for the approach of a train, or take any precaution whatsoever to learn whether there was danger in attempting to cross. In [11]*11the latter case, the irijured party did not look for the train after he reached the right-of-way of the railroad company, and the jury found that he ceased to look at the distance of seventy-five feet before he reached the track. In this case the testimony shows that when Morgan approached the crossing he looked both ways, up and down the track, and the jury found that from the time he reached a point seventy-five feet north of the crossing to the time the engine struck his team, he looked west three times for the purpose of ascertaining whether any engine or train was approaching. It is possible that Morgan was deceived by the appearances on account of the snow and wind. This was more likely to occur as the engine was moving backward, not forward, and not ringing any bell or sounding any whistle, or giving any other signal. An engine and tender running swiftly would not make the noise or rumbling of a train of cars.
The counsel for the railroad company contend that the testimony that Morgan looked and saw nothing, should not be considered, because they say his statement raises no conflict of evidence. Several cases are cited to support this contention. One of these, Artz v. Railroad Co., 34 Iowa, 153, is a case where the injured party testified that “he both looked and listened to see the train, but did not.” The testimony in that case clearly establishes that the train was approaching him in the night with the engineer’s headlight burning brightly? and if he looked he must have seen it, or he must have looked very negligently or carelessly. In another case, Railroad Co. v. Elliott, 28 Ohio St. 340, it was shown that if the party injured had looked, as a man exercising ordinary care should have looked, he could not have failed to see the train approaching. The other cases referred to are similar, and decide that when the object a person seeks to discover is plainly and palpably visible before him, his evidence that he looked and did not see, amounts to nothing; then his testimony is not true, or his exercise of vision is such as to have been negligent or culpable. This, in our view, is not such a case. In this connection it should be noticed that there were three persons upon [12]*12the engine which was running so rapidly — the engineer, the fireman, and a watchman. None of these noticed Morgan or his team until the collision, except the engineer, and he first saw Morgan when the engine was seventy-five or a hundred feet only from the crossing. If Morgan could have seen the engine approaching for a long distance, as counsel for the railroad contend, then of course the persons operating the engine could as easily have seen him, or his team, the same distance. What was said in Artz v. Railroad Co., supra, may well be repeated here:
1. Bodily ingencelques-1' «on ai-jury, “If the view of the railroad, as the crossing is approached upon the highway, is obstructed by auy means, so as to render it impossible or difficult to learn of the approach of a train, or there are complicating circumstances calculated deceive or throw a person off his guard, then, whether it was negligence on the part of the plaintiff or the person injured, under the particular circumstances of the case, is a question of fact for the jury.”
Again, it is contended that the snow storm and gale of wind were temporary obstructions only; therefore that it was the duty of Morgan, when he reached the track, to wait until these obstructions passed away. We cannot say upon the testimony as a matter of law, that these obstructions were temporary only; these are matters for the jury, and they were properly instructed to consider them.
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The opinion of the court was delivered by
Horton, C. J.:
This was an action brought by John W. Morgan against the railroad company to recover for personal injuries; also, for the killing of a pair of horses owned by him, and for damages to his wagon and harness. The material facts in the case are as follows: On the 7th day of December, 1885, about noon, Morgan, while attempting to cross the track of the railroad company at a public crossing with his team and farm wagon on Main street, in the village of Walton, a small place of two hundred and fifty inhabitants, in Harvey county, in this state, was struck by the rear end of the tender of a railroad engine, running backward through the village and over the crossing at a high rate of speed — thirty miles an hour: his wagon was making some noise. He was severely injured, his horses were killed, and his wagon and harness broken. He was thirty-seven years of age, a farmer by occupation, and had been familiar with the road and crossing for nearly four years. He attempted to cross the railroad track to reach a coal yard to obtain a load of coal. He approached the crossing from the west and north. The depot at Walton, a small, low building, was six hundred feet west of the crossing. A few feet from the crossing, in the direction from which the engine came, two side-tracks gradually diverged from the main track for some little distance, and then paralleled it. Along the south side of the track there were two or three buildings, the depot being between the main track and the side-track running south of it. At the time Morgan attempted to cross the track it was snowing very hard, and the wind was blowing a gale. When he approached the crossing he looked both ways several times, up and down the track, and did not [10]*10see any engine or cars. When he was within forty or fifty feet of the crossing there were no obstructions immediately upon the track, or on the north side of the track, to a view of the track for several hundred feet west, if the day had been clear.
It may be assumed from the evidence and findings of the jury that the whistle of the engine was not sounded, nor the bell rung, nor any other signal given by the employés operating the engine as it approached the crossing where the injuries occurred which are complained of. In many things the testimony of the witnesses is conflicting, but it was the province of the jury to determine the question of veracity between the witnesses, and therefore all matters supported by the testimony found in favor of the plaintiff by the verdict or special findings must be considered as having been proved. The negligence of the railroad company must be regarded under the testimony and verdict as having been established.
The most important question presented in the case is, whether Morgan is to be denied any damages for his injuries on account of his alleged contributory negligence. In other words, was it error for the district court to submit the question of his contributory negligence to the jury ? Within the decisions of this court, we do not think we can say as a matter of law that contributory negligence was so clearly established upon the part of the defendant that he cannot recover; and therefore it was not error to refuse to withdraw from the jury the question of his contributory negligence. (L. L. & G. Rld. Co. v. Rice, 10 Kas. 426; K. P. Rly. Co. v. Richardson, 25 id. 391; W. & W. Rld. Co. v. Davis, 37 id. 743.)
U. P. Rly. Co. v. Adams, 33 Kas. 427, and A. T. & S. F. Rld. Co. v. Townsend, 39 id. 115, are cited against the recovery of any damages. These cases do not apply. In the former, the parties who were familiar with the highway and crossing drove up in a two-horse wagon upon a trot in plain view of the railroad track, without stopping to listen or look for the approach of a train, or take any precaution whatsoever to learn whether there was danger in attempting to cross. In [11]*11the latter case, the irijured party did not look for the train after he reached the right-of-way of the railroad company, and the jury found that he ceased to look at the distance of seventy-five feet before he reached the track. In this case the testimony shows that when Morgan approached the crossing he looked both ways, up and down the track, and the jury found that from the time he reached a point seventy-five feet north of the crossing to the time the engine struck his team, he looked west three times for the purpose of ascertaining whether any engine or train was approaching. It is possible that Morgan was deceived by the appearances on account of the snow and wind. This was more likely to occur as the engine was moving backward, not forward, and not ringing any bell or sounding any whistle, or giving any other signal. An engine and tender running swiftly would not make the noise or rumbling of a train of cars.
The counsel for the railroad company contend that the testimony that Morgan looked and saw nothing, should not be considered, because they say his statement raises no conflict of evidence. Several cases are cited to support this contention. One of these, Artz v. Railroad Co., 34 Iowa, 153, is a case where the injured party testified that “he both looked and listened to see the train, but did not.” The testimony in that case clearly establishes that the train was approaching him in the night with the engineer’s headlight burning brightly? and if he looked he must have seen it, or he must have looked very negligently or carelessly. In another case, Railroad Co. v. Elliott, 28 Ohio St. 340, it was shown that if the party injured had looked, as a man exercising ordinary care should have looked, he could not have failed to see the train approaching. The other cases referred to are similar, and decide that when the object a person seeks to discover is plainly and palpably visible before him, his evidence that he looked and did not see, amounts to nothing; then his testimony is not true, or his exercise of vision is such as to have been negligent or culpable. This, in our view, is not such a case. In this connection it should be noticed that there were three persons upon [12]*12the engine which was running so rapidly — the engineer, the fireman, and a watchman. None of these noticed Morgan or his team until the collision, except the engineer, and he first saw Morgan when the engine was seventy-five or a hundred feet only from the crossing. If Morgan could have seen the engine approaching for a long distance, as counsel for the railroad contend, then of course the persons operating the engine could as easily have seen him, or his team, the same distance. What was said in Artz v. Railroad Co., supra, may well be repeated here:
1. Bodily ingencelques-1' «on ai-jury, “If the view of the railroad, as the crossing is approached upon the highway, is obstructed by auy means, so as to render it impossible or difficult to learn of the approach of a train, or there are complicating circumstances calculated deceive or throw a person off his guard, then, whether it was negligence on the part of the plaintiff or the person injured, under the particular circumstances of the case, is a question of fact for the jury.”
Again, it is contended that the snow storm and gale of wind were temporary obstructions only; therefore that it was the duty of Morgan, when he reached the track, to wait until these obstructions passed away. We cannot say upon the testimony as a matter of law, that these obstructions were temporary only; these are matters for the jury, and they were properly instructed to consider them. (Solen v. V. & T. Rly. Co., 13 Nev. 106; Shaber v. St. P. M. & M. Rly. Co., 28 Minn. 103; Salter v. U. & B. R. Rly. Co., 59 N. Y. 631.)
In McCrory v. Railroad Co., 31 Fed. Rep. 531, the temporary obstruction of vision was smoke — something that would pass away in a moment. In Railroad Co. v. Houston, 95 U. S. 697, about all that was decided was —
“That upon attempting to cross a railroad track, a person is bound to use his senses — to listen and to look — in order to avoid any possible accident from an approaching train. If he omits to use them, and walks thoughtlessly upon the track, or if, using them, he sees the train coming, and instead of waiting for it to pass, undertakes to cross the track, and in either case receives any injury, he so far contributes to it as to deprive him of any right to complain.”
[13]*13Further, it is said as the jury found that if Morgan had stopped his team twenty feet north of the crossing to look and listen for the approach of a train, he could have seen the engine in time to avoid the accident, and as he did not stop, therefore that he is not entitled to any damages. It was said by this court as long ago as 1872, that “the traveler on the highway is not bound to stop when he approaches a railroad.” (Railroad Co. v. Rice, 10 Kas. 426.)
Most of the states support the rule recognized by this court. (2 Lacey, Rld. Dec. 764.) Only a few of the states decide that the failure to stop before crossing a railroad track is negligence per se. (Railroad Co. v. Beale, 73 Pa. St. 504; 6 Am. Rep. 158; 2 Lacey, Rld. Dec. 765.)
The plaintiff is not precluded from recovery because on approaching the railroad crossing he did not stop. Of course he must have exercised that degree of diligence in ascertaining the approach of the engine that a man of ordinary prudence would have exercised under like circumstances. If he did this, notwithstanding the special findings of the jury he is entitled to his damages, if the railroad company through its agents or employés was guilty of culpable negligence.
Considering what has already been said, we do not think it necessary to comment at length upon the instructions given or refused. The law was not stated incorrectly, nor any instruction material to the issues refused. It was said in the opinion in Improvement Co. v. Stead, 95 U. S. 165:
“The mistake of the defendant's counsel consists in seeking to impose upon the wagon too exclusively the duty of avoiding collision, and to relieve the train too entirely from responsibility in the matter. Railway companies cannot expect this immunity so long as their tracks cross the highways of the country upon the same level. The people have the same right to travel on the ordinary highway as the railroad companies have to run trains on the railroad.”
These remarks have special application in this case, because the engine had three employés to operate it, and to look out for obstructions. Further, the engine was not drawing any [14]*14freight or passenger cars, and the parties operating it were relieved from all responsibility in looking after freight or passengers.
The complaint that the special findings of the jury conflict with the general verdict, is a substantial one. The verdict was for $4,227. Morgan testified that at the time of the collision he was farming seventy-five acres of land; that he was confined to his bed after that about-three weeks; that it was nearly six months before he could go to work again; that before he was injured he ordinarily made $500 a year. He also testified:
“Q. You may state as near as you can, how much less work you can do now, if any, than you could before you were hurt ? A. One-quarter less.
“Q. What do you mean — that you can do three-fourths as much work now as you could before ? A. Yes, sir.”
2'§^oontS>i The jury answered to particular questions submitted to them, that Morgan was able to earn $500 a year prior to his injury; that except the first six months after his injury he was able to do at least three-fourths as much work as he could do before the injury; that in the general verdict there was an allowance of $25 for the physician attending him, but that there was nothing given for pain or suffering. When the special findings of fact are inconsistent with the general verdict, the former control the latter. (Civil Code, § 287; Railway Co. v. Lyon, 24 Kas. 748.) As the general verdict did not include any compensation, or damages for pain and suffering, it is excessive — not being supported by the testimony. Why the jury refused to allow Morgan anything for the pain and suffering resulting from his injuries, we do not understand. However, the special findings control. The value of the horses killed was $400; the damages to the wagon and harness were $40; the physician’s bill was $25; total amount $465. Morgan’s yearly loss, excepting the first six months after his injury, was one-fourth of $500 — $125. For the first six months of his disability he is entitled to one-half of $500 — $250. $2,084 would pro[15]*15duce annually at 6 per cent, interest, (the present legal rates,) $125; therefore, all damages included in the general verdict above $2,799 cannot be sustained.
The judgment must be reversed unless Morgan, within thirty days, remits $1,428. If this is done, the judgment will be affirmed for $2,799, the plaintiff below paying the costs.
The U. P. Rly. Co. v. Dunden, 37 Kas. 1-8, referred to, furnishes no support to the general verdict. In that case there were no special findings of the jury conflicting with the verdict, or stating what specific damages were allowed or disallowed.
The case will be remanded, and, if $1,428 is remitted, judgment will be entered accordingly; otherwise a reversal must be had.
All the Justices concurring.