Opinion
No. 21546.
April 2, 1951.
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, THOMAS R. HUNT, J.
Frank J. Stark, John M. Kilroy and Shughart Thomson, all of Kansas City, for appellant.
John H. Lathrop, Sam D. Parker, James F. Walsh and Donald H. Sharp, all of Kansas City, for respondent.
This is an action for damages to an automobile owned by plaintiff. It arose out of a collision at a railroad crossing. There was a verdict in plaintiff's favor for $2665. The trial court set the verdict aside on the ground that plaintiff failed to make a submissible case and entered judgment for defendant. Plaintiff appealed.
Defendant's double track railroad runs east and west over Braddock crossing, which is located in the country 3 miles west of Peabody, Kansas, on a county road. On the north side of the main line railroad tracks one-fourth mile west of Braddock crossing, there were a number of bunk cars, in one of which Elmer Green, defendant's section foreman, and Mrs. Green were staying at the time of the collision. A road extended from the county road west along the south side of defendant's tracks, affording access by automobile from the county road to the vicinity of the bunk cars.
Between 3:00 and 4:00 o'clock on the morning of June 9, 1948, plaintiff and Emma Green, daughter of Elmer Green, approached Braddock crossing from the north on the county road in plaintiff's 1948 Mercury convertible automobile. Plaintiff was driving Emma Green home to the bunk car. Plaintiff intended to drive west from the county road on the road leading toward the bunk cars. Plaintiff had never been over the crossing before. As they approached the railroad crossing, Emma Green told plaintiff that she thought the road leading west to the bunk cars was on the north side of the tracks, but after they arrived at the crossing she said it was on the south side.
Plaintiff testified that as the automobile's front wheels crossed the northern most rail on the right-hand side of the road, the engine died and the automobile stopped rolling with the front wheels between the rails of the westbound or north set of tracks. The rear wheels spun and dug in when plaintiff started the engine and tried to drive on. Plaintiff rocked the car forward and backward, but (he testified) the automobile scraped on something and he could not free it. Plaintiff turned the steering wheel to the left, counterclockwise, and backed up, and when he backed up the right front wheel went off the west or right-hand edge of the crossing between the rails of the westbound track. Plaintiff and Emma Green heard a train coming and they left the automobile. Plaintiff started up the track with a flashlight.
Defendant's westbound streamlined passenger train, El Capitan, rounded a curve one mile east of Braddock crossing and approached on straight track at a speed of about 75 miles per hour. The night was dark. The train's two headlights, one a stationary light and the other a gyrating light, illuminated the track about 800 feet ahead of the train. Defendant's locomotive engineer saw a flickering light on the west or other side of Braddock crossing and thought that the light was a bad order headlight on a train coming east on the eastbound track. The engineer, called by plaintiff, testified that as the train approached the crossing the flickering light crossed on the crossing ahead of the train and that was the first indication to him that the light was a signal for the train. The engineer made a service application of the train's brakes. He testified that he saw a dark object (the automobile) on the track 400 to 500 feet ahead. He placed the train 500 to 800 feet from the automobile at the time he applied the brakes in an emergency operation. When the train collided with the automobile, the speed of the train was 40 to 45 miles per hour, having slowed from 75 miles per hour. The automobile caught fire and burned.
Train conductor Seward, defendant's witness, testified that plaintiff told him immediately after the collision that he (plaintiff) drove his automobile on the crossing and turned to the west in order to shine his lights down on the bunk cars. Elmer Green, defendant's witness, testified that after the collision plaintiff and Green's daughter came to the bunk car and plaintiff told Green that plaintiff wanted to see if the bunk car was still parked there, and he turned his headlights west and ran off the west end of the crossing. Plaintiff denied making these statements.
Plaintiff's theory as disclosed in his principal instruction is that the crossing was an "unusually dangerous" one for public use and that it was the duty of defendant to have operated its train at a "slower speed" than it was traveling as it approached the crossing,
It has always been held that in the country between stations away from congested areas, it is not negligence for passenger trains to run at a rapid speed over railroad crossings. Cross v. Chicago, R. I. P. R. Co., 120 Kan. 58, 242 P. 469; McGee v. Wabash Ry. Co., 214 Mo. 530, 541, 114 S.W. 33. A speed of 85 to 90 miles per hour by a train over a country crossing has been held not to constitute negligence. Burge v. Wabash Ry. Co., 244 Mo. 76, 148 S.W. 925. At a country crossing such as the Braddock crossing here involved, it is a question of what is a reasonable rate of speed under the circumstances, and this in turn rests upon the question of whether a crossing is unusually dangerous or hazardous, and whether a crossing is "more than ordinarily hazardous or dangerous" depends upon the circumstances surrounding it. Duncan v. Chicago, B. Q. R. Co., Mo.App., 149 S.W.2d 920.
We agree with the view taken by the trial court that there was no substantial evidence showing the crossing involved was unusually dangerous.
Plaintiff offered Sec. 66-227 of the General Statutes of Kansas, 1935, which requires railroad crossings to be sufficient and kept in good repair; that said crossings shall not be less than 24 feet in width on country roads and the material used in the crossing "shall be wood, gravel, crushed rock, concrete, burned clay or slag at the discretion of said company and of a permanent thickness equal to the height of the railroad rails."
Plaintiff also offered in evidence the interrogatories addressed to defendant by plaintiff and defendant's answers thereto. These answers show that on May 10th and 11th, 1948, "new rails were laid for the westbound track. One 24 foot plank was laid north of and adjacent to the north rail of the westbound track, one 24 foot plank was laid south of and adjacent to the south rail of the westbound track, and planking 24 feet long was laid between the rails of the westbound track." In the period between May 11th and 25th, 1948, new material was placed on and near the crossing. This material was "class `B' chat, hard flint ranging in size from 1/2 to 2 inches."
The only evidence upon which plaintiff relies to show this crossing to be unusually dangerous is the evidence of the crushed rock or gravel on the crossing and its approaches. This in spite of the fact that the Kansas Statute expressly approves the use of crushed rock or gravel on a railroad crossing.
Here is the evidence bearing on the condition of the crossing and upon which plaintiff must rely to make out his charge that the crossing was unusually dangerous: You pull up a small incline and then hit the tracks. When the front wheels of the automobile first hit the gravel it slowed down the automobile, and as the front wheels went over the first track the back wheels hit the gravel and the engine stalled. When plaintiff started the engine the wheels spun, digging themselves in, kicked gravel out from under the right back wheel, and that let the car hit something on the crossing. Plaintiff heard the car scrape. He turned the steering wheel to the left and backed up. When he backed up the right front wheel dropped off the west or right-hand side of the crossing between the rails. The gravel or crushed rock was white and clean. It was loose gravel and squashed underfoot. The loose gravel, referred to in the testimony, was "railroad chat, crushed rock." The gravel was level with the planks and the rail to the north of the crossing for two feet.
Photographs of the crossing and its approaches taken on the morning following the accident were offered in evidence (10 by plaintiff, one by defendant). On the outside of each rail of the westbound track is a long plank and between the rails 6 of these planks are shown. They appear to be in good condition and level with the top of the rails. These pictures show the approaches to be covered with gravel and practically level. In fact, the whole surrounding area seems to be almost flat.
The cases cited by plaintiff do not aid him. They are based on different facts. To illustrate this we refer to three of them, Juznik v. Kansas City Southern Ry. Co., 109 Kan. 359, 199 P. 90, 91; Orr v. Atchison, Topeka Santa Fe Ry. Co., 119 Kan. 751, 241 P. 437, and Agee v. Missouri Pac. Ry. Co., Mo.App., 288 S.W. 992.
In the first, the crossing was in "bad condition. It was not filled, * * * but loose dirt and dust had been thrown in over the ties, and the automobile dropped four or five inches into loose dirt, dust, and ruts of the depression".
In the second, "the planks along the rails were insufficient and the space between the rails was filled with loose, wet, slippery dirt".
In the third, there were "large openings and grooves" in the planking at the crossing. "These grooves were wide enough for the wheels of a Ford car to be caught therein."
The judgment is affirmed. All concur.