Modlin v. Consumers Cooperative Ass'n.

241 P.2d 692, 172 Kan. 428, 1952 Kan. LEXIS 360

• Court: Supreme Court of Kansas
• Decided: March 8, 1952
• Docket: 38,445
• Status: Published

Opinions

The opinion of the court was delivered by

Parker, J.:

This is an appeal by the Consumers Cooperative Association and its insurance carrier, American Fidelity Casualty Company, Inc., from a judgment rendered against them for damages on a verdict returned by a jury in an action instituted by F. Eva Modlin, as administratrix of the estate of Clarence C. Modlin, a deceased railroad engineer, under the wrongful death statute (G. S. 1947 Supp. 60-3203, now G. S. 1949, 60-3203).

The pleadings on which the cause was submitted to the jury can be summarized briefly. For the moment all that need be said respecting them is that the petition states a cause of action under the statute and alleges that plaintiff’s intestate decedent, while in charge of and operating a Chicago, Rock Island and Pacific Railway Company engine, was killed in a collision between a motor transport belonging to the defendant association and a passenger train belonging to the railway company at a railroad-highway crossing and that the negligence of such defendant, which was denied by its answer as well as that of the insurance company, was the proximate cause of the decedent’s death.

Many factual allegations of the petition, not now important, were admitted by the defendants’ answers. In addition each such defendant alleged in its answer that the deceased engineer’s negligence in the operation of the train at a high and excessive rate of speed of at least 100 miles per hour, under conditions and circumstances which made it impossible for him to bring the train to a stop at the crossing when the occasion required, was the direct and proximate cause of his death. The answers also charged that such decedent assumed all risks attendant upon the operation of the train under existing circumstances and that plaintiff was es-topped to deny the decedent was free from negligence by reason of the fact the railway company had confessed his negligence as well as its own by settling and disposing, without suit, of claims filed against it by other employees who were assisting in the operation of the train at the time of the accident. On motion of the plaintiff all allegations, except the admissions referred to in this paragraph of the opinion, were stricken from the answers by the trial court and the propriety of that ruling is one of the questions for appellate review.

With issues joined, as heretofore related, a jury was empaneled and sworn to try the cause. Thereupon plaintiff made her opening statement. At its close defendants moved for judgment on such statement. When this motion was overruled plaintiff adduced her evidence. After she had introduced all her evidence defendants demurred thereto. This demurrer was also overruled. Defendants then adduced their evidence. At the close of all the testimony they requested certain instructions which were denied. Thereafter, under instructions submitted by the court, the jury retired to the jury room and in due time returned a single verdict in favor of the plaintiff and against both defendants. Thereupon counsel for defendants requested that a separate verdict be returned against the defendant Casualty Company for the amount of its insurance coverage only. This request was granted , and the jury, in compliance with instructions of the court, returned two verdicts, one against the Casualty Company for the amount of its insurance coverage and the other against the Consumers Association for the full amount of damage found to be due. Thereafter the defendants filed motions for judgment notwithstanding the verdicts and motions for a new trial. When these motions were overruled they perfected this appeal.

The points relied upon by appellants as grounds for reversal of the judgment are succinctly set forth in their specifications of error which read:

“1. The District Court erred in sustaining Plaintiff’s motion to strike portions of amended separate answers of the defendants Consumers Cooperative Association and American Fidelity and Casualty Co. Inc.

“2. The District Court erred in overruling defendants’ motion for judgment in their favor on the opening statement of plaintiff’s counsel.

“3. The District Court erred in overruling the defendants’ demurrer to the evidence offered by the plaintiff for the reason that it failed to sustain any of the allegations of negligence contained in plaintiff’s petition, for the further reason there was a complete failure of proof and for the further reason as set out in Defendants’ demurrer to the evidence.

“4. The District Court erred in refusing to submit defendants’ requested instructions to the jury and to fully instruct the jury thereby.

“5. The District Court erred in overruling defendants’ motion for a new trial.

“6. The District Court erred in overruling defendants’ motion for judgment not withstanding the verdict of the jury.

“7. The District Court erred in entering judgment for the plaintiff and against the defendants; for the reason that said judgment is wholly contrary to the law and evidence introduced in this action.”

So far as the facts are concerned the vital issue involved in this case is whether those admitted by the answers, and others established by the evidence, are sufficient to warrant the trial court’s action in submitting to the jury for its decision, as a question of fact, the question whether negligence on the part of the driver of the motor transport was the proximate or legal cause of the collision. Indeed, there is little, if any, dispute between the parties as to the factual situation on which a decision of such issue depends. On that account, without distinguishing between admissions and facts established by the evidence, the facts essential to a proper understanding of the conditions and circumstances prevailing at the time the accident occurred can be stated in narrative form as follows:

The train consisted of two Diesel engines and eleven modern-design light-weight passenger cars. Locomotives No. 637 and No. 634 comprised the power units. Number 637 was the lead unit and its cab was occupied by the plaintiff’s decedent, who operated and controlled the engines drawing the train, as locomotive engineer.

The motor transport consisted of a motor unit and semitrailer tank which was loaded with approximately 3,000 gallons of gasoline and 1,300 gallons of distillate at the time of the accident.

The collision occurred at a point some seven miles southwest of Norton, Kan., where the railroad track runs east and west and state highway No. 383 north and south, the two crossing substantially at right angles. The train was going west and the motor transport south. The driver of the transport was familiar with the highway and crossing, having traveled the highway and crossed the railroad track on a number of previous occasions.

For a distance of approximately fifty feet in each direction the crossing was substantially at grade. A standard cross-buck sign bearing the words “Railroad Crossing” was located 27M feet north of the track, a standard highway railroad crossing sign was located 794.7 feet north of such track and in between the two signs, at a point 604 feet north of the railroad track, was a narrow bridge crossing what is known as Prairie Dog Creek.

There is some discrepancy in the testimony but it is clear the accident took place between 3:30 a. m. and 4:30 a. m., probably about 3:45 a. m. on December 23, 1947. It was cloudy that morning but there was no fog and, except for the fact it was dark, visibility was good.

The front Diesel engine was equipped with a whistle which could be heard for several miles. It was also equipped with two headlights, one of which shone straight ahead and the other oscillated its rays from side to side somewhat similar to the upper part of a horizontal figure “8.”

When the train left Norton both headlights on the front engine were shining and they continued to shine until the moment of the crash. The oscillating light was seen by persons at a point approximately ten miles west of the point of the collision. The whistle of the locomotive was blown and was heard by persons who happened to be awake at the early hour in question when the train was a considerable distance from the crossing. Witnesses also heard the regular crossing whistle followed by a long blast of the whistle which continued to the moment of the collision.

Evidence was also adduced, and not denied, to the effect that a person standing on the crossing or on the highway at any point within 240 feet north of the crossing would have an unobstructed view of the train approaching from the east for a distance of approximately 2,000 feet, after it came around a curve some 2,000 feet east of the crossing; anyone standing on the crossing at night or on the highway immediately north of the track could see the direct headlight of the locomotive beginning at a point a mile east of the crossing and the glow of the oscillating light about the time the train left Norton; from the time the engine reached a point 1,941 feet east of the crossing and continuing until it reaches the crossing he can look directly into both headlights.

Just prior to the collision the train was in an eighty-five mile zone of the railroad line and it was traveling from sixty to sixty-five miles an hour. The brakes were applied somewhere between three to five seconds before the collision.

At the crossing the engine struck the tank section of the motor transport. Part of the tank was thrown to the north of the track and the other part to the south. The motor section of the transport was thrown to the south of the track and to the west a distance of about 120 or 125 feet from the intersection.

As the result of the collision, which was followed by instantaneous explosion and fire, the driver of the motor transport, the plaintiff’s intestate decedent, the engineer, and the fireman who was sitting in the cab of the engine with him were killed. The body of the driver of the motor transport was found south of the track and to the west some twenty-five to thirty feet northeast of where the motor section of the transport came to rest. The bodies of the engineer and fireman were found in the cab of the engine and when found each was sitting in his seat in the cab leaning forward and outward. The throttle of the engine was in an idle position and the automatic brake valve was found in full emergency position.

After the collision no flares, reflectors, or other signals were found on either side of the railroad crossing on the highway.

All known eye witnesses to the collision were instantly killed and the evidence adduced at the trial came from the lips of witnesses who gave their version of the existing facts based on observation of the surrounding conditions and circumstances.

With respect to its first specification of error appellants raise three questions. The first is that the trial court should not have stricken allegations in the answers charging appellee’s decedent with negligence in operating the train. Resort to the pleadings in question makes it clear such allegations charged the engineer with operating the train at an excessive rate of speed, under conditions and circumstances where he was unable to bring it to a stop at the crossing when occasion required and nothing more. The settled law of this state is that railroads may lawfully operate their trains at any rate of speed their business may require outside the limits of municipalities and populous communities where no peculiar conditions exist which made it dangerous for them to do so, even though the rate of speed is so great as to make it impossible for their trains to stop at crossings, and that standing alone conduct of that character does not constitute actionable negligence. See Bazzell v. Atchison, T. & S. F. Rly. Co., 134 Kan. 272, 5 P. 2d 804; Bunton v. Railway Co., 100 Kan. 165, 163 Pac. 801; Land v. Railroad Co., 95 Kan. 441, 148 Pac. 612; Adams v. Railway Co., 93 Kan. 475, 144 Pac. 999; Railway Co. v. Schriver, 80 Kan. 540, 103 Pac. 994; Railway Co. v. Durand, 65 Kan. 380, 69 Pac. 356, and A. T. & S. F. Rld. Co. v. Hague, 54 Kan. 284, 38 Pac. 257. The foregoing rule applies with equal force to the engineer who was operating the train for and on behalf of the railroad. It follows the trial court did not err in striking the allegations to which we have last referred from the answers. The second question raised by this assignment of error is that allegations in the answers to the effect decedent assumed all risks attendant upon the operation of the train under the circumstances alleged in the petition were improperly stricken. The short answer to this question is that the doctrine of assumption of risk is only applicable to cases arising between master and servant (LeClair v. Hubert, 152 Kan. 706, 709, 107 P. 2d 703). If such allegations be construed as charging that the decedent, like the railroad, would be responsible for negligence in operating the train it is. answered by our conclusion other allegations of the answers failed to establish negligence in that respect. There is little merit to the third contention the trial court erred in striking allegations from the answers charging that appellee was estopped from denying her intestate decedent was free from negligence because the railroad had confessed his negligence by compromising and paying claims, without suit, made by other employees upon the premise they had sustained injuries in the involved accident due to negligence of the railroad in operating the train. We are cited to no decisions, and are unable to find any, holding that action of that character by an employer establishes negligence on the part of its employee.

Directing attention to specification of error No. 3 we come to what has been heretofore referred to as the all important issue involved in the case. The over-all position taken and strenuously urged by appellants on this point is that the trial court should not have submitted to the jury the question whether negligence on the part of the driver of the motor transport was the proximate or legal cause of the collision and that instead it should have sustained their demurrer to appellee’s evidence on the ground she had wholly failed to establish the negligence of the driver of the transport as charged in the petition which, in a general way, can be said to be that such driver failed to stop the transport within fifty feet but not less than ten feet from the nearest rail of the railroad, failed to stop, look and listen for the approaching train or signals indicating its approach, and failed to wait at such crossing until he could proceed across it with safety, all as required by the provisions of G. S. 1947 Supp., 8-566 (now G. S. 1949, 8-566).

The general rule, so well established as to hardly require citation of ohr decisions supporting it, is that in ruling on a demurrer to the evidence the evidence and the inferences that may properly be drawn therefrom must be considered in the light most favorable to the party against whom the demurrer is directed, and if the evidence and the inferences viewed in that manner are of such character that reasonable men in the exercise of fair and impartial judgment may reach different conclusions, the demurrer should be overruled and the issue submitted to the jury (West’s Kansas Digest, Negligence, § 136 [9] [10], Appeal & Error, § 927 [5], and Trial, §156 [2] [3]).

It must be admitted, as appellants point out, the simple fact the collision occurred and some were killed or injured, standing alone, is not enough to establish negligence and that the record must disclose substantial competent evidence showing negligence on the part of the driver of the transport which was the proximate or legal cause of the collision in order to uphold the trial court’s action in overruling the demurrer. These, and most of the other legal principles having application to the facts presented by the record in the instant case are fully set forth in Hendren v. Snyder, 143 Kan. 34, 53 P. 2d 472, and Crowe v. Moore, 144 Kan. 794, 62 P. 2d 846, where, in each such decisions, it is said:

“The simple fact that there was a collision and someone was injured is not of itself sufficient to predicate liability. (Zinn v. Updegraff, 113 Kan. 25, 35, 213 Pac, 816; 9 Blashfield Cyclopedia of Auto Law, 399.) It is familiar law that negligence is never presumed; it must be established by proof. Like any other fact, it may be established by circumstantial evidence. (Mayes v. Kansas City Power and Light Co., 121 Kan. 648, 249 Pac. 599.) But the circumstances ‘relied on must be of such a nature and so related one to the other that the only reasonable conclusion to be drawn therefrom is the theory sought to be established.’ (Cornwell v. O’Connor, 134 Kan. 269, 271, 5 P. 2d 861.) ‘A fact is not proven by circumstances which are merely consistent with its existence.’ (Canestro v. Joplin-Pittshurg Rld. Co., 135 Kan. 337, 341, 10 P. 2d 902.)

“In Whiteker v. Wichita Rld. & Light Co., 125 Kan. 683, 265 Pac. 1103, it was held:

“ ‘A finding of negligence cannot rest on mere conjecture, but must be established by competent proof.’ (Syl. f 1.)

“See, also, Beeler v. Railway Co., 107 Kan. 522, 192 Pac. 741; Norman v. Railway Co., 101 Kan. 678, 168 Pac. 830, and A. T. & S. F. Rly. Co. v. Toops, 281 U. S. 351, reversing Loops v. Atchison T. & S. F. Rly. Co., 128 Kan. 189, 277 Pac. 57.”

It is to be noted that statements of like, if not identical, import appear in our more recent decisions of Miller v. Gabbert, 154 Kan. 260, 266, 118 P. 2d 523, and Goodloe v. Jo-Mar Dairies Co., 163 Kan. 611, 618, 185 P. 2d 158.

To the foregoing principles of law we might add another which is particularly applicable here. It is that the physical facts and circumstances of a collision may be sufficiently clear to warrant a trial court in submitting the questions of how the collision occurred and who was at fault to a jury for decision even in the absence of testimony of eye witnesses (Sawhill v. Casualty Reciprocal Exchange, 152 Kan. 735, 107 P. 2d 770).

We should perhaps pause at this point to mention two other legal principles which, under the prevailing facts, are equally as applicable as those heretofore mentioned and are stressed by appellants in arguments advanced in support of their positions on specifications of error numbered 5, 6 and 7, as well as the one now under consideration. The first of these principles is that it is not within the jury’s province to indulge in mere speculation or conjecture in respect to an issue of negligence, hence a verdict cannot be predicated on mere speculation or conjecture respecting that vital issue (Hendren v. Snyder, supra, Whiteker v. Wichita Rld. & Light Co., 125 Kan. 683, 265 Pac. 1103; Helm v. Railway Co., 109 Kan. 48, 196 Pac. 426; Beeler v. Railway Co., 107 Kan. 522, 192 Pac. 741; Hart v. Railroad Co., 80 Kan. 699, 102 Pac. 1101; Railroad Co. v. Aderhold, 58 Kan. 293, 49 Pac. 83). The second principle, to which we have.last referred, is that ordinarily, and in the absence of convincing evidence to the contrary, it will be presumed that a deceased person exercised reasonable care for his own safety (Henderson v. National Mutual Cas. Co., 164 Kan. 109, 187 P. 2d 508; Smith v. Bassett, 159 Kan. 128, 152 P. 2d 794; Eidson v. Railway Co., 85 Kan. 329, 116 Pac. 485; Railroad Co. v. Gallagher, 68 Kan. 424, 75 Pac. 469; C. R. I. & P. Rly. Co. v. Hinds, 56 Kan. 758, 44 Pac. 993). This presumption, it is to be noted, is a rebuttable one and may be overcome by direct or circumstantial evidence sufficiently strong for that purpose (Sawhill v. Casualty Reciprocal Exchange, supra; Goodloe v. Jo-Mar Dairies Co., supra).

Nothing will be gained by repeating the evidence before the trial court at the time of its ruling on the demurrer. It will suffice to say that when such evidence is surveyed and critically analyzed in the light of the principles of law, to which we have heretofore referred, we believe it discloses sufficient probative facts and circumstances immediately preceding, attending, and following the collision, to warrant that tribunal’s action in overruling the demurrer to the evidence and in submitting to the jury for its decision, as the trier of facts, the question whether the driver of the motor transport was guilty of acts of negligence as charged in the petition which were the proximate and legal cause of the collision and the injuries sustained by the appellee’s intestate decedent.

In reaching the conclusions just announced we have not failed to give careful consideration to two contentions upon which appellants place great weight and insist compel a contrary view. The essence of one is that the circumstantial evidence adduced by appellee was insufficient to overcome the presumption of love of life, the exercise of due care and compliance with law, with which the law itself clothed the driver of the motor transport at the time of the collision. The gist of the other is that the evidence was wholly insufficient to establish negligence on the part of such driver as charged in the petition and afforded the jury nothing but speculation and conjecture upon which to base a verdict on that vital question. In view of what has been heretofore stated all that need be said is that we have rejected both contentions because we are convinced appellants have failed to give the evidence the force and effect to which it is entitled.

Our decision respecting the sufficiency of the evidence and the propriety of the trial court’s ruling on the demurrer is not entirely new or unsupported by the authorities. In Chicago, Rock Island and P. R. Co. v. Consumers Coop. Assn, 180 Fed. 2d 900, wherein, except for the parties to the action and a counter-claim by the Consumers Cooperative Association, similar facts and issues were involved, the United States Court of Appeals, for the Tenth Circuit, reached a like decision which we believe should be followed and adhered to as a sound legal precedent.

Having determined the demurrer to the evidence was properly overruled appellants’ second specification of error requires little attention. This court is committed to the rule that no judgment should be entered on an opening statement unless in the making of such statement it appears the party making it has admitted facts which necessarily and absolutely preclude recovery (Wilson v. Holm, 164 Kan. 229, 188 P. 2d 899; Rodgers v. Crum, 168 Kan. 668, 673, 215 P. 2d 190). No admissions of that character appear in the appellee’s opening statement. Therefore, appellants’ motion for judgment thereon was properly overruled.

The same holds true of the fourth specification of error. It suffices to say we have examined the instructions requested and denied, as well as those submitted by the trial court, and that we find nothing in either those denied or submitted which would warrant this court in reversing the judgment.

Other specifications of error not heretofore specifically referred to, and contentions advanced with respect thereto, relate to questions pertaining to the sufficiency of the evidence. Such questions require no further attention since they have been discussed, considered, and disposed of in the opinion.

The judgment is affirmed.