Lane v. Atchison, Topeka & Santa Fe Railway Co.

98 P.2d 403, 151 Kan. 113, 1940 Kan. LEXIS 81
CourtSupreme Court of Kansas
DecidedJanuary 27, 1940
DocketNo. 34,482
StatusPublished
Cited by3 cases

This text of 98 P.2d 403 (Lane v. Atchison, Topeka & Santa Fe Railway Co.) 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
Lane v. Atchison, Topeka & Santa Fe Railway Co., 98 P.2d 403, 151 Kan. 113, 1940 Kan. LEXIS 81 (kan 1940).

Opinion

The opinion of the court was delivered by

Smith, J.:

This was an action for damages alleged to have been sustained when plaintiff was struck by a switch engine operated by defendant. At the close of the evidence of plaintiff the defendant demurred to it. This demurrer was overruled. At the close of the evidence of defendant and after the court had instructed the jury the plaintiff dismissed the action. The defendant appeals from the order of the trial court overruling its demurrer to the evidence of the plaintiff.

After describing the corporate nature of the defendant the petition alleged that the tracks of defendant ran from east to west across the main business street of Newton, near the intersection of Fourth and Main streets, and that the crossing was composed of a series of ten tracks. A map of the intersection showing these tracks was attached to the petition and was introduced in evidence. The petition then alleged that the defendant had established a bell and signal-light system operated by defendant for the purpose of warning and controlling traffic at the crossing and that this system was in operation at the- time in question. The petition then alleged that on October [114]*11415, 1937, at 5:45 p. m., plaintiff approached this crossing, walking on the sidewalk from the south, on the west side of Main street; that there was no signal ringing or signal light; that as plaintiff approached the watchman's tower, which is about five feet west of the west sidewalk, the defendant started its bell ringing and displayed its signal lights; that plaintiff stopped on the sidewalk while a train pulled westward across the intersection, either on the north track or on the cross-over track from the north to the second track from the north; that as the.last car of the train pulled westward the defendant negligently caused the bell to stop ringing and the signal light to be discontinued. The petition then alleged that plaintiff, relying on the signal of safety and the invitation to cross the intersection, that is, the act of the defendant in causing the signal light to stop burning, proceeded north on the sidewalk across the tracks. The petition further alleged that the defendant negligently operated the signal system, and a switch engine backed into plaintiff and injured him while he was about one-half or two-thirds of the way across the intersection. The petition alleged that the negligence of the defendant was as follows:

“1. In causing said signal bell to stop ringing and said signal light to stop burning while the said train, aforesaid, was on said intersection and when said switch engine was entering upon and crossing said intersection.
“2. By causing said switch engine to enter upon and cross said intersection at a high and unreasonable rate of speed such as to endanger the life and limb of pedestrians traveling thereupon and particularly this plaintiff.
“3. By entering upon said intersection with said switch engine without a signal so to do.
“4. By operating said switch engine without a light or signal at the rear or tender thereof.
“5. By operating said engine on said crossing and intersection without any member of its designated crew riding on the rear of said engine across said intersection, the same being, as this plaintiff verily believes, a violation of the safety rule's of said defendant for said crossing and intersection, which said fact is particularly within the knowledge of said defendant.
“6. By failing to maintain a proper lookout from said switch engine for pedestrians on said intersection or crossing.”

The petition then alleged that the defendant knew, or should have known, that this plaintiff was on the crossing and in a position of peril, but defendant did not do anything to avoid hitting plaintiff. The plaintiff then set out the injuries he had sustained.

Judgment was asked in the amount of $50,000.

For its answer, defendant pleaded first a general denial. The answer then stated that if the plaintiff suffered any injuries at the [115]*115place and time in question when he was struck by an engine any injuries he sustained were not the result of any negligence on the part of the defendant, and the negligence on the part of plaintiff was the proximate cause of the injury. The answer then alleged that the plaintiff, having crossed over seven of the tracks, knew that the danger was to be apprehended and failed to exercise reasonable care for his own safety in proceeding on across the tracks; that the plaintiff, being in a place of safety between the seventh and eighth tracks, over which he knew trains were expected to pass frequently, proceeded on to the eighth track without looking to observe whether any train or engine was then occupying the intersection or in such close proximity that it would be dangerous to attempt to cross the track. The answer further alleged that plaintiff negligently and carelessly moved from a position of safety directly into the path of an engine which had already crossed the paved portion of the street and was in close proximity to the sidewalk where plaintiff was, without looking. That he attempted to proceed across a railroad track after warnings had been given by means of horns, bells, lights or switchman signal that trains were approaching and that it would be thereafter dangerous to cross these tracks without looking.

The reply was a general denial. The ground of defendant’s demurrer was that plaintiff’s evidence failed to prove a cause of action in favor of the plaintiff and against the defendant.

After the order overruling the demurrer the defendant proceeded to introduce its evidence. At the close of the defendant’s evidence the defendant asked for a peremptory instruction directing the jury to render a verdict in its favor. This motion was overruled. The trial court then proceeded to instruct the jury.- The trial court then advised counsel for plaintiff to proceed with their arguments to the jury. The counsel for plaintiff announced thereupon, however, that they dismissed the cause without prejudice. It was thereupon dismissed.

The defendant appeals from the order overruling the demurrer to the evidence and from all other rulings and orders of the trial court adverse to the defendant made in the trial of the case prior to the dismissal without prejudice.

The only argument made in this court is that the trial court erred in overruling the demurrer to the evidence of plaintiff.

This will necessitate a careful examination of the evidence offered. We shall consider this with the aid of a plat of the intersection [116]*116which was introduced in evidence by defendant, but the accuracy of which is not disputed. This plat is attached to this opinion.

Plaintiff testified that on the day in question he left home about .the evening; as he walked up towards town the street lights were lighted; that he was on the west side of Main street and it was dark when he reached the crossing; that on the first track there was a string of boxcars about flush with the sidewalk; he crossed past them [117]*117after looking to the east and west and then he crossed another track or two; that the traffic signals, that is, the bells and lights and wigwag signal, operated by the man in the signal tower, were not on.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Vilander v. Hawkinson
326 P.2d 273 (Supreme Court of Kansas, 1958)
Henderson v. National Mutual Casualty Co.
203 P.2d 250 (Supreme Court of Kansas, 1949)
Johnson v. Union Pacific Railroad
143 P.2d 630 (Supreme Court of Kansas, 1943)

Cite This Page — Counsel Stack

Bluebook (online)
98 P.2d 403, 151 Kan. 113, 1940 Kan. LEXIS 81, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lane-v-atchison-topeka-santa-fe-railway-co-kan-1940.