Smith v. Joplin & Pittsburg Railway Co.

[32] The opinion of the court was delivered by Benson, J.: This appeal is from a j udgment awarding damages for injuries suffered in a collision of an electric interurban car with an automobile. The right of way of the railway adjoins and is parallel to a public, road extending north and south. A hedge row stood upon the line between the road and the right of way. A cross road extended east and west across the north-and-south road and through a gap in the hedge and over the right of way and track of the defendant. At the time of the collision the hedge was about fifteen feet ,in height and its branches extended about seven feet on each side. The gap was fifty feet in width. The east rail of the railway track is about sixteen feet from the center line of the hedge. The track is five feet wide, measuring to the outer sides of the rails, and the car was nine feet wide. The plaintiff, driving an automobile in which his wife and daughter were seated., drove north upon the road first referred to and turned west upon the cross road. He stopped at the turn near or in the gap in the hedge to look and listen for a car. From his seat five .and one-half feet from the front of the automobile he could see the track for a distance of only fifty feet north and south of the crossing, because of the projecting branches of the hedge. He'aring no whistle and not hearing or seeing any indication .of-an approaching car, he proceeded at low speed, running at the rate of three miles an hour, until the front of the automobile was at or very near the east rail, when he saw a car fifty feet away coming from the north. He immediately reversed his machine arid started backward, but the car struck the radiator and hood, causing the injuries complained of. The car was running at the rate of twenty miles an hour. The obstruction of the view of- the track continued until the plaintiff was within seven feet of [33] the east rail of the track. At that point he might have seen the approaching car eighty rods away. The principal contention of the defendant is that contributory negligence of the plaintiff is conclusively shown by the evidence because he did not stop after passing through the hedge and again look and listen. It is insisted that from the undisputed facts the court should declare as matter of law that the plaintiff was negligent, although the jury in answering special questions found that he was not. If only one conclusion can be drawn from undisputed facts, the question of negligence is one of law. (Railway Co. v. Hanson, 67 Kan. 256, 72 Pac. 773; Johnson v. Railroad Co., 80 Kan. 456, 459, 103 Pac. 90.) If reasonable minds might differ upon that question the jury must decide. (Beaver v. A. T. & S. F. Rld. Co., 56 Kan. 514, 43 Pac. 1136; Westine v. Railway Co., 84 Kan. 213, 219, 114. Pac. 219.) The plaintiff knew that he was approaching the track. He saw it in turning west and stopped at the turn accordingly. If the whistle upon the car was sounded he did not hear it. He could not see the car at that point, because the hedge obstructed his view. Passing by the obstruction and when first within the zone of clear vision the front of his automobile was within about eighteen inches of the track. Taking into consideration the overhang of the car, he was right at the point of danger. It is true that a situation may be such that ordinary prudence will require a person seated in a vehicle approaching a crossing not only to stop, but if necessary to alight, or leave his seat, or change his position in order to take observations, but ordinarily such a duty can not be declared as a matter of law; it must be determined by the jury as a question of fact. In this case the nature of the vehicle; the place and duty of the driver in managing it; the location of the steering wheel directly in front of him; the space between [34] his seat and the front of the car; the distance from the side of the hedge to the track; the speed at which he was driving; his duty to look in both directions, and every other circumstance revealed by the evidence must be considered in determining whether the driver acted with reasonable prudence. Upon a careful consideration of these matters it can not be held as matter of law that the plaintiff was negligent. The question of contributory negligence was one of fact for the jury. One of the instructions was obj ected to on the ground that it authorized a verdict based upon any one of the acts of negligence charged in the petition. One of these specifications was the failure of the defendant to construct the crossing in the manner required by the statute. A special finding, however, was returned that the defendant’s negligence consisted in handling the car in a careless manner. A more particular finding was not requested. It is true that no liability could be founded on the defective crossing alone, for it was not a cause of the injury, but this finding of the jury makes any discussion of the alleged error unnecessary. The judgment is affirmed.