Martin Owens, a Minor by Laura H. Owens, Next Friend v. Chicago, Rock Island and Pacific Railroad Company

292 F.2d 696

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 1, 1961
• Docket: 6685
• Status: Published

Opinions

MURRAH, Chief Judge.

This is an appeal from a judgment of the District Court on a directed verdict in a suit by the appellant for personal injuries, arising out of a railroad crossing accident in Lawrence, Kansas.

The salient facts are not in dispute. The only question is whether they warrant a permissible inference of negligence. If so, the case should have been submitted to the jury. See Lopez v. Denver & Rio Grande Western Railroad Company, 10 Cir., 277 F.2d 830.

The appellant was riding in a panel truck, while it was being driven in a northerly direction on Fourth Street in Lawrence, Kansas. The truck approached the railroad crossing consisting of six tracks, including two main lines —one east-bound, one west-bound. The crossing signal lights and bells were operating. The truck stopped at the south side of the southern-most tracks, and the driver and appellant observed the approach of a train traveling west. When the train had passed over the crossing to the point where the caboose was in sight, the driver of the truck proceeded across the unoccupied tracks to a point about three feet from the moving west-bound train. At this point, the rear of the truck extended over the east-bound tracks. While standing in this position, appellant noticed the approach of appellee’s train, traveling eastward on the east-bound, main track. He hollered to the driver, alighted and went to the rear of the truck, where he was first observed by the fireman and brakeman on the left side of the appellee’s engine. They warned the engineer, who immediately applied the emergency brakes.

At the point of the collision, the tracks curve rather sharply to the north, and a truck is not observable by an approaching train until it was within about 400 feet of the crossing. At this point, a train traveling 20 to 25 m. p. h. is unable to stop with the application of emergency brakes, before passing over the crossing.

After the train came into the view of the truck driver, he pulled forward toward the moving west-bound train, but apparently was unable to clear the eastbound tracks and the appellee’s eastbound train struck the rear of the truck, turning it around. Appellant was last seen moving from the rear to the east side of the truck. After the appellee’s train stopped, appellant was found near the moving train on the west-bound tracks.

Appellant relies upon a pleaded ordinance of the City of Lawrence, which provides in substance and effect that it shall be unlawful for a railroad to operate a train within the City limits “at a rate of speed in excess of 30 m. p. h., or in any manner which is dangerous to public safety.” He does not contend that the appellee’s train exceeded the prescribed speed limit, but he does contend that the railroad violated the ordinance by operating it in a manner dangerous to public safety, which is another way of saying that the train was .operated negligently under existing circumstances.

Much is said about unconstitutional vagueness of the statute, but we think violation is a concomitant of negligence, i. e., if the railroad was negligent in the circumstances, it violated the ordinance.¹ If not, there could be no violation. In that regard, we speak of negligence in the sense of ordinary care as at common law, not the F.E.L. A.’s statutory negligence, 45 U.S.C.A. § 51 et seq., which is “significantly different from the ordinary common law negligence action * * See Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 509, 77 S.Ct. 443, 1 L.Ed.2d 493. Making application of the common law negligence rule in cases of this kind, the Kansas courts have emphatically said that ordinary care does not impose upon the railroad a duty to operate its train at such a rate of speed that it can be stopped within the range of vision of a railroad crossing. Bunton v. Atchison, T. & S. F. Ry. Co., 100 Kan. 165, 163 P. 801; Johnson v. Killion, 179 Kan. 571, 297 P.2d 177. See also Chicago, Rock Island and Pacific Railroad Co. v. Hugh Breeding, Inc., 10 Cir., 247 F.2d 217.

Since ordinary care does not require the train to be operated at a rate of speed which would enable it to be stopped within the range of vision, it is difficult to perceive any breach of ordinary care. Through no fault of the railroad, the appellant found himself in a position of peril. When the railroad first observed him in that position, it was unable to avoid injury in the circumstances. The judgment is affirmed.

1 . “ * * * the law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree.” Nash v. United States, 229 U.S. 373, 377, 33 S.Ct. 780, 781, 57 L.Ed. 1232.