Wichita & Western Railroad v. Davis

Opinion by Clogston, C.: Upon this record the plaintiff in error raised but two questions, but as they are substantially one in fact we shall discuss them as one, and that is, did the injury occur by the contributory negligence of the defendant? The plaintiff in error now contends that on the facts found by [747] the jury it was error not to direct the jury to return a verdict for the defendant, plaintiff in error. Upon this theory it requested the court to instruct the jury as follows: “ I instruct you that if the plaintiff, before driving upon the track of the defendant at which the injury complained of occurred, could at any time have seen the approaching train in time to escape by looking to the south, it will be presumed as a matter of law, either that he did not look, or that if he did look that he did not heed what he saw, and concluded to take the risks of attempting to cross in front of the approaching train; in which case I instruct you that the plaintiff, if you so find the facts, was guilty of contributory negligence, contributing to his injury, and cannot recover in this case.” This instruction the court refused to give. The rule, as contended for by the plaintiff in error, is, that if the plaintiff could have seen, by carefully looking, the approach of the train, then it was negligence for him to drive over the track ahead of the train, knowing that the train was coming; or, if he failed to look, or, if looking, failed to discover the train and drove upon the track and was injured, he cannot recover; or, in other words, that if one does look and fails to discover what it would be possible for others to see, or undert some circumstances might have been seen by the person so looking, then it is contributory negligence not to see. If this rule is the true one, then nothing short of the greatest care and caution will warrant a recovery for injuries received through negligence in the operation of trains. We do not understand the rule to be so far extended as to require the greatest care and caution, but only reasonable care, such as a man of ordinary prudence would exercise under similar circumstances. (Desmond v. Brown, 29 Iowa, 54; L. L. & G. Rld. Co. v. Rice, 10 Kas. 426.) The rule seems to be well settled in this state, that before a person can recover for injuries received in crossing a railroad at a public road or street, he must, before attempting to cross, recognize the danger and make use of the senses of hearing and seeing in determining whether a train is in dangerous proximity; and if he neglect this duty and venture blindly upon the track, without making an effort to ascer [748] tain whether a train is approaching, that he does so at his peril. (Clark v. Mo. Pac. Rly. Co., 35 Kas. 354.) The supreme court of Iowa, in speaking of this question, said: “The instruction was properly refused. It requires too great a degree of care and circumspection. It makes no allowance for the ordinary imperfections of humanity. It requires absolute perfection of attention to surroundings, while the mind is concentrated upon a particular duty. So high a degree of: caution the law does not enjoin. It requires only the exercise of reasonable and ordinary care.” (Greenleaf v. Railroad Co., 33 Iowa, 57.) The supreme court of the United States, referring to an instruction similar to that contended for by the defendant, said: “ It states such duty with the rigidity of a statute, making no allowances for modifying circumstances, or for accidental diversion of the attention to which the most prudent and careful are sometimes subject, and assuming in effect that the duty of avoiding a collision lies wholly or nearly so on one side.” (Improvement Co. v. Stead, 95 U. S. 168. See U. P. Rly. Co. v. Adams, 33 Kas. 427.) But where the undisputed facts show that this rule has been disregarded, and no precaution has been taken to ascertain and avoid dangers, it then becomes a question of law for the court, and not a question of fact to be submitted to the jury. Where there is a conflict of testimony that reasonable men might differ about, then it becomes a question of fact to be submitted to the jury. The plaintiff testified that he looked north and south, expecting to see a train; that a gale of wind was blowing, and it was very dusty; that he saw the cars on the side track, and looked to see whether an engine was behind them,' and saw none;' and the fact that the train was moving backward; are questions to go to the jury with the fact that the train was in view for some two blocks south of the crossing, and might have been seen. It was perhaps seen by the plaintiff, and mistaken, under the above conditions of the weather and the character of the train, and he thought it to be on the side track. It was said in Barnard v. Railroad Co., 1 Abb. Ct. of Appeals, 131: “If there is any conflict in the evideucé going to establish [749] any of the circumstances upon which the question depends, it must be left to the jury. If there are inferences to be drawn from the proof which are not certain and incontrovertible, they are for the jury. If it is necessary to determine, as in most cases it is, what a man of ordinary prudence and care would be likely to do under the circumstances proved — this involving, as it generally must, more or less conjecture — can only be settled by a jury.” In Webber v. Railroad Co., 58 N. Y. 465, the court said : “It is true that the vigilance and caution of the traveler must be proportioned to the known danger of the injury; but it is also in a measure limited by the usual and ordinary signals and evidences of danger. The natural instinct of self-preservation ordinarily will lead to the employment of all the precaution which the situation suggests to an individual; and whether they are such as would occur to or be adopted by men of ordinary care and prudence, must necessarily, in most cases, be left to the jury. The intelligence and judgment, as well as the experience, of twelve men, must settle a question of that character as one of fact, and not of law.” . ( K. P. Rly. Co. v. Richardson, 25 Kas. 391; U. P. Rly. Co. v. Young, 19 id. 488; K. P. Rly. Co. v. Pointer, 14 id. 37; Pa. Railroad Co. v. Weber, 76 Pa. St. 157; Carr v. Railroad Co., 60 N. Y. 633; Thurber v. Railroad Co., 60 id. 331; Lonck v. Railroad Co., 18 N.W. Rep. 657.) While this question is a close one, yet we do not feel called upon to disturb the judgment where it is so conclusively shown that the employés of the defendant in charge of the train were so grossly negligent in its management. Although the plaintiff may have been somewhat negligent, yet it is not clearly shown that his negligence contributed to the injury. If he saw the train after passing the orchard, and the train was then some distance south,-he might with reasonable safety have crossed before it reached the crossing, provided .the train was running only at such a rate of speed as it might properly run in a populous city. This court has repeatedly held that where the negligence of one party is great, and that of the other but slight, notwithstanding the slight negligence the party may recover. (Pacific Rld. Co. v. Houts, 12 Kas. 328; K. P. Rly. Co. v. Pointer, 14 id. 37; Sawyer v. Sauer, 10 id. 466.) [750] Under all the circumstances of this case, we do not find that the plaintiff was guilty of such contributory negligence as to prevent his recovery. It is therefore recommended that the judgment of the court below be affirmed. By the Court: It is so ordered. All the Justices concurring.