Bledsoe ex rel. Bledsoe v. Missouri-Kansas-Texas Railroad

90 P.2d 9, 149 Kan. 741, 1939 Kan. LEXIS 122
CourtSupreme Court of Kansas
DecidedMay 6, 1939
DocketNo. 34,072
StatusPublished
Cited by25 cases

This text of 90 P.2d 9 (Bledsoe ex rel. Bledsoe v. Missouri-Kansas-Texas Railroad) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bledsoe ex rel. Bledsoe v. Missouri-Kansas-Texas Railroad, 90 P.2d 9, 149 Kan. 741, 1939 Kan. LEXIS 122 (kan 1939).

Opinion

The opinion of the court was delivered by

Harvey, J.:

These were actions for damages which grew out of a collision of an automobile with a freight train at a railroad crossing on a paved highway. Plaintiff in No. 34,072 was a passenger in the automobile and the action was for her personal injuries. Plaintiffs in No. 34,073 are the parents of Jackson Dodd, Jr., who was a passenger in the automobile and who was killed in the collision. It [742]*742was an action for wrongful death. Plaintiff in No. 34,074 is the father of plaintiff in the first case and the action was for medical, hospital,, and other expenses he incurred for her because of her injuries in the collision. Though filed as separate actions, they were tried together in the court below. In each case the plaintiff, or plaintiffs, recovered, the respective amounts being $1,500, $2,999 and $500. Defendant has appealed. In this court the cases are consolidated.

The general facts may be stated as follows: From Coffeyville, a city of the first class with a population of about 18,000, the defendant’s railroad runs northeastwardly to Parsons, about thirty miles away, and beyond. For possibly two miles from the city of Coffey-ville it runs through the bottom or valley land of the Verdigris river. Through this valley defendant’s roadbed is graded up two and one-half feet, or more in places, above the general level of the land about it, and in some places where there is an unusually low place in the land trestle work is used in lieu of the graded roadbed. From the northeast corner of the city of Coffeyville a paved federal and state highway, known as U. S. 169, runs directly north for several miles and then northeast to the city of Cherryvale. Less than a mile north of the city of Coffeyville it crosses the tracks of the defendant railroad, and about 200 feet north of the crossing it crosses the Verdigris river on a bridge. This highway was graded, improved and paved by the state and federal highway departments in accordance with plans prepared by the state highway department and approved by the federal highway department. Through the river valley it is more nearly on the grade of the valley than is the roadbed of defendant. At a point 150 feet north of the railroad crossing the top of the pavement is two and one-half feet lower than the top of the rails at the crossing. From this point south the pavement gradually rises until, at a point thirty or thirty-five feet north of the crossing, it is level with the top of the rails, continues level to about thirty feet south, of the crossing, and then gradually declines as on the other side. Defendant had the railroad crossing signs required by statute (G. S. 1935, 66-2,121) on each side of the crossing, and the state highway commission had erected the highway signs usual to indicate the approach to a railroad crossing. To the west of the highway and south of the railroad were several large tanks for the storage of oil. The closest one of these to the highway was about 150 feet. Also, to the [743]*743west of the highway and north of the railroad was an oil refinery. The closest part of that plant to the highway is not stated in the abstract. South of the railroad crossing and near the city was a city park, with the amusement appliances lighted and used at night.

Defendant’s exhibits 1 and 3, reproduced here, are photographs of the crossing taken November 11,1936. Exhibit 1 was taken from a point 375 feet north of the crossing and exhibit 3 from a point 100 feet north of the crossing. The train shown on the track in exhibit 3 is not the one with which the automobile involved in this action collided, but the tank cars are similar to those in the freight train with which the automobile collided.

On the evening of November 9, 1936, four young people took a pleasure drive about the city of Coffeyville. The automobile in which they were riding was driven by L. C. Schaede. With him on the front seat was Opal Ross. Jackson Dodd, Jr., and Emma Bled-soe rode in the rear seat. About 9:30 o’clock Miss Ross was let out at her home. The other three continued to ride about town. Later in the evening, possibly about 11 o’clock, they drove north on U. S. 169 over this railroad and the Verdigris river bridge, possibly as far north as the town of Liberty, about seven miles from Coffey-ville. At any rate, they were returning to Coffeyville shortly before midnight. As they were approaching the city one of the defendant’s freight trains, consisting of sixty-three freight cars, exclusive of the caboose and the engine and tender, was moving northeast out of Coffeyville at about twenty miles per hour. As the parties in the automobile approached this crossing the side windows of the automobile were down. After they had crossed the bridge over the Verdigris river the plaintiff, Miss Bledsoe, saw one or more box cars moving along the railroad track. She said nothing to Mr. Schaede about that. The automobile was going about twenty-five or thirty miles per hour. Without any slacking of speed the automobile was driven into the side of the moving freight train. It struck an oil tank car, the fortieth car counting from the front of the train, the twenty-third counting from the caboose. As a result of this collision Miss Bledsoe received the injuries for which her action was brought, and Jackson Dodd, Jr., received injuries which resulted in his death. L. C. Schaede was not a witness in these cases. The record does not disclose t'o what extent he was injured, if at all, or whether he has an action pending against defendant.

[744]

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Bluebook (online)
90 P.2d 9, 149 Kan. 741, 1939 Kan. LEXIS 122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bledsoe-ex-rel-bledsoe-v-missouri-kansas-texas-railroad-kan-1939.