Slaton v. Union Electric Railway Co.

The opinion of the court was delivered by Dawson, C. J.: This was an action for damages sustained by plaintiff while riding in an automobile which collided with a freight car which was being pushed by an electric locomotive on defendant’s street railway in Coffeyville. The city of Coffeyville was impleaded as defendant. The Union Electric Railway Company has a railway line which runs east and west on Eighth street in Coffeyville. That street is about thirty feet wide and is paved with brick. Buckeye street crosses Eighth street in a suburban part of the city. On Labor Day, September 8, 1942, plaintiff and two young men, Arthur Cornett and Toby Curtis, spent part of the day riding about town in Cornett’s automobile. Curtis did the driving. Late that night another girl, Lucille Blumenstein, joined them. She and Curtis sat in front and Jewell Slaton and Cornett occupied the rear seat. About half an hour after midnight, while these young people were riding westward on Eighth street near its crossing with Buckeye street, Toby Curtis, their driver, undertook to pass another automobile going in the same direction. To do so he veered to the left, astraddle of the streetcar track. At that time a large freight car was approaching from the west, being pushed by defendant’s electric locomotive. Before Toby Curtis got the automobile off the track it collided with the freight car and Jewell Slaton was injured. Hence this lawsuit. In her petition Miss Slaton pleaded her version of the accident and her resulting injuries, alleging that the defendant railway company was negligent in the following particulars: “That the brick pavement between the rails of said defendant’s track were lower than the rail. That the brick and filler adjacent to the inside of its north rail had been removed and worn away, causing a ditch or depression along the inside of said north rail, so that the tire on the car in which plaintiff was riding could not be driven over said rail with safety, but caught against said rail, thereby causing said collision.” — 134 — Plaintiff’s petition also alleged that defendant failed to have a light on the front end of the freight car as it was being pushed eastward, so that the same could have been seen and warning given in time for the driver of the automobile to get off the streetcar track. It was alleged that the pavement— “On the inside of the north rail . . . [was] from one to four inches lower than the top of the rail. That said brick did not fit against the north rail, and the filler between the brick and the rail had crumbled and worn away, so that there was a ditch or depression from two to six inches deep and from three to eight inches in width adjacent to the north rail. “That when the car in which plaintiff was riding was approximately seventy-five (75) feet from -the -approaching box car . . . Toby Curtis turned the steering wheel of said car to the north and attempted to drive said car off the streetcar track. That the left front tire upon said automobile caught against the north rail and the car slid forward for a distance of approximately thirty (30) feet, at which time it cleared the rail, and the back tire caught on said rail, holding the automobile on the track. That the train . . . kept coming from the west, and, without diminishing its speed, struck the car in which plaintiff was riding, thereby crushing and mashing the same, and cutting, mashing and injuring the plaintiff . . The petition also charged that defendant failed to have an employee on the front end of the freight car so that such employee could have seen the automobile in which plaintiff was riding and signalled defendant’s motorman to stop in time to avoid the collision. Plaintiff also alleged that the defective condition of the street had existed for more than six months and that the city of Coffeyville, and its agents and servants knew or should have known its condition in time to repair it, but that they negligently failed to discover its defective condition, which resulted in her injury and damage. She prayed for $10,000 damages against the street-railway company and against the city. The defendant railway company answered with a general denial, and alleged that if plaintiff was injured at the time and place alleged, said injuries were the sole result of an unavoidable accident for which defendant was not responsible. The city’s separate answer was to the same effect, with the further plea that plaintiff’s petition did not state a cause of action against the city. ' The cause was tried before a jury. By the time the evidence for all parties was completed, it developed that there was no failure on the part of the railway company to have the advancing end of — 135 — the freight car properly lighted and to have an employee riding in front. There was testimony that at and near the point of the collision the groove inside the north rail was somewhat deeper than necessary for the free operation of the flanges on the wheels of the defendant’s cars and vehicles. It was shown that the advancing freight car on the street-railway tracks could have been seen for a long distance by the occupants of the automobile; and that for the purpose of passing another automobile going in the same direction the driver of the Cornett car drove it on to the streetcar track in the face of the on-coming freight car about the intersection of Buckeye street and Eighth street, and that the point of collision was a short distance west of there. There was evidence that the Cornett car was traveling westward at 25 miles per hour, and that the freight car was being pushed eastward at 15 to 20 miles per hour. Defendant’s freight car and electric engine were equipped with an air hose which, by manipulation of hand levers under control of the employee riding on the front end of the freight car, would sound a whistle and set the brakes of the train. Plaintiff testified quite candidly: "I rode along in the automobile that night ... to the point of collision. I . . . did not see any light, . . . did not see a box car . . . I paid no attention to the driving and did not pay any attention to the streetcar in front of us; I paid no attention to the streetcar tracks and did not look or listen or anything like that.” Arthur Cornett, plaintiff’s seat-mate in the car (and who has since married her) testified with equal candor to the same effect. Lucille Blumenstein, who rode in the front seat with the driver, testified that when their automobile was passing the other car prior to the accident, she had been looking straight ahead but “turned around to say something to Jewell . . . and the next thing I looked and seen the Union Traction boxcar coming up the street just before it hit us.” Toby Curtis, driver of the automobile, testified by deposition: “I passed a car near Buckeye [street], and as I went around it, I got over on the streetcar tracks.” When Curtis gave his deposition he had deposed, — “but I did not see a streetcar until I was about, it must have been about ten feet.” However, before he signed his deposition, he changed the words “ten feet” to read “seventy-five feet.” When this portion of the deposition was read in court it precipitated a colloquy between coun — 136 — sel for the litigants extending through several pages of the abstract. The driver’s deposition also read, in part: “Q. After you passed the car you mentioned, did you attempt to pull back to the north side of the street, or did you continue driving west with your wheels in the streetcar track? A. Well, I hadn’t gone but just a little ways until I saw the streetcar. “Q. Where was the [freight] car when you first saw it, relative to the west side of Buckeye street? A. (I believe) it was west of Buckeye. “Q. How far west of Buckeye would you estimate it was when you first saw it? A. About 75 feet. “Q. Were you east of Buckeye when you first saw the car? A. No. “Q. Where were you when you first saw it? A. Just about to the west side of Buckeye. “If the railroad car had been equipped with lights on the east end of the car that was being pushed there was nothing to prevent me from seeing the car.” Curtis’s testimony touching the left side wheels of the automobile being caught inside the north rail reads: “The south wheels were over the north rail of the streetcar track. . . . then I saw the streetcar ... So I cut it sharp, and the front wheel and the hind wheel caught on the rails as I started to turn, and slid forward. The front wheels released within a few feet of the streetcar, before the car got off, and the streetcar hit about middle ways of the left front fender.” Cornett testified: “When we got in front of Mathis’ the car started sliding forward and we could not get off the track. The front wheel caught on the north rail and kept on sliding, when the front wheel broke loose the back wheel caught, and before we had a chance to get off the streetcar hit us.” At the conclusion of plaintiff’s evidence the defendant interposed a demurrer based on the insufficiency of the evidence to prove a cause of action, and' — ■ “For the further reason that contributory negligence of the plaintiff affirmatively appears from the evidence introduced by and on her behalf, which as a matter of law, bars recovery by her in this action and does not entitle the action to go to the jury.” The defendant, the city of Coffeyville, filed a like demurrer. These demurrers were overruled. The jury returned a general verdict for plaintiff against the defendant railway but returned a verdict in favor of the defendant city and against the plaintiff. With their general verdict, the jury also returned special findings, viz.: — 137 — “1. For what distance was the automobile in which plaintiff was riding driven on the streetcar track before it collided with the1 box car? A. 85 feet. “2. What was the greatest depth of the groove on the inside of the north rail from the center of Buckeye street to the point where the collision occurred? A. 3 inches. “3. Were there any lighted lanterns on the front end of the box car at the time of and immediately before the collision occurred? A. Yes. “4. If you answer question No. 3 ‘Yes,’ how many lanterns were there and what color of light did they show? A. 2 red and 1 white. “5. If you answer question No. 3 ‘Yes;’ for what distance could these lights have been seen by the plaintiff had she been looking? A. 600 feet. “6. If you find for the plaintiff and against The Union Electric Railway Company, in what respect was the railway company negligent? A. Irregularity of rail and track bed. “7. Was Willard Tucker [employe of defendant] riding at or immediately near the front end of the box car at the time of and immediately before the collision? A. Yes. “8. What, if anything, did the plaintiff do or say to the driver of the automobile in which she was riding to warn him of the approaching cars of the railway company? A. Nothing. ‘‘9. If you find for the plaintiff and against The City of Coffeyvillé, in what respect was the city negligent? A. City was not negligent. “10. If plaintiff had been looking in the direction of the approaching railway cars could she have seen them when the automobile in which she was riding was . . . (d) 600 feet from the railway cars? A. 600 feet. “11. Was the defendant, The Union Electric Railway Company, negligent: “(a) In that the street between the rails was defective and unsafe at the place where the collision occurred? A. Yes. “(b) In that it failed to have lights on the boxcar being pushed toward the automobile in which plaintiff was riding? A. No. “12. Was Willard Tucker riding on the front end of the box car as it was being pushed toward the car in which plaintiff was riding? A. Yes. “13. If you answer question No. 12 in the affirmative, then state if after Willard Tucker had observed the car in which plaintiff was riding on the street car track, could he by the exercise of ordinary care have stopped the train in time to have avoided the collision? A. Yes. “14. Do you find that the plaintiff was guilty of any act of negligence that contributed to her injuries? A. No. “15. If you answer question No. 14 in the affirmative, then state the act or acts of negligence committed by plaintiff that contributed to her injuries? A. None.” The defendant railway company filed a motion to strike out the answer to special finding No. 11 (a) and findings 14 and 15, as contrary to the evidence and too indefinite to sustain the general verdict, and contrary to and inconsistent with the other special findings which found definite and specific facts. It also objected to finding — 138 — No. 13 and moved to strike it out on the ground that it was not within the issues joined by the pleadings. The defendant railway company also filed a motion to set aside the verdict and for judgment in its behalf on various grounds, two of which read: “3. That the special findings of fact absolve this defendant from negligence. “4. That under the special findings the plaintiff was guilty of contributory negligence barring her recovery in this action.” Plaintiff filed a motion to amend her petition by an allegation that an employee of the defendant was upon the side of the freight car (near its northeast corner) and— “That a device for stopping said train was connected with the air line on said train, so that by turning a lever, said employee could apply the air and stop said train within a distance of a few feet. That said employee saw the automobile in which the plaintiff was riding approaching the train, and by the exercise of reasonable care, could have stopped said train in time to have avoided said collision.” Plaintiff also moved for judgment against the city for the reason that the jury’s special findings show that plaintiff was entitled to judgment against it non obstante. Plaintiff also moved for a new trial against the city. Neither party moved for a new trial as to the railway company. All these motions were overruled and judgment was entered for plaintiff against the railway company and in favor of the city of Coffeyville. The railway company appeals from the judgment rendered against it, and plaintiff cross appeals against the city. It will be noted that the jury’s special findings 3, 4 and 5 exonerated the railway company on the charge of failing to have a light on the advancing freight car which would have warned the driver of the automobile and its passengers of its approach. So, too, special findings 7 and 12 established the fact that there was a railway employee on the front end of the freight car being pushed eastward on Eighth street. Touching the special finding No. 13, no such allegation of negligence was pleaded, and it should have been stricken out on defendant’s motion. It should also have been stricken out for another reason: By its finding No. 1 which was supported by evidence the jury found that the automobile got on the streetcar track at a point 85 feet from the point of collision. The evidence showed that the automobile was traveling westward at 25 miles per hour and the railway freight car was being pushed eastward at 15 to 20 miles per — 139 — hour. It is therefore perfectly obvious that there was insufficient time after Curtis drove the automobile onto the railway track in which “by the exercise of ordinary care” the defendant’s freight car and its motive power could have been stopped in time to avert the collision; and finding No. 13 was not sustained by evidence even if the alleged negligence stated in that finding had been pleaded in plaintiff’s petition. Touching the jury’s special finding No. 6 that the railway company’s negligence lay in the “irregularity of rail and track bed,” defendant invokes the rule that a jury’s specific finding of negligence exonerates defendant of any and all other negligence alleged in the petition. This rule is sound, of course (Rasing v. Healzer, 157 Kan. 516, 142 P. 2d 832), but whatever other findings are in accord therewith are not to be left out of consideration. (Greiner v. Greiner, 129 Kan. 435, 283 Pac. 651.) So we think finding No. 2 should be read in connection with No. 6. However, this does not apply to finding No. 11 (a) which is a mere conclusion, not a finding of fact, and not based on any competent evidence. (Koster v. Matson, 139 Kan. 124, 134, 30 P. 2d 107, and citations.) Do findings Nos. 2 and 6 support the allegation of negligence in the petition— “That the brick pavement between the rails of said defendant’s track were lower than the rail. That the brick and filler adjacent to the inside of its north rail had been removed and worn away, causing a ditch or depression along the inside of said north rail, so that the tire on the car in which plaintiff was riding could not be driven over said rail with safety, but caught against said rail, thereby causing said collision.” Surely a groove three inches deep inside the rail in which the flange of defendant’s car wheels must be free to turn did not support the allegation of “a ditch or depression along the inside of said north rail.” At most it was only 1% inches deeper than necessity required according to the evidence of the engineers who testified in the case. The findings 2 and 6 do not support the allegation that the brick pavement between the rails was materially lower than the track nor otherwise so materially defective as to support a verdict for damages against either defendant. It is obvious, we think, that the jury did not regard their duty considerately since the existence of any serious defect in the pavement likely to cause injury and damage to persons making a reasonable use of the street would be a joint liability against the city and the street railway alike. (Street Rly. Co. v. Stone, 54 Kan. 83, 37 Pac. 1012; Adams v. Electric Railway Co., 95 Kan. 781, 149 Pac. 700.) Yet here the jury specifically found that — 140 — the city was not negligent, and that the railway company was negligent! It is only required of a city that it keep its streets reasonably safe for public use (Taggart v. Kansas City, 156 Kan. 478, 134 P. 2d 417), and no harsher rule can justly be imposed on the street railway company. There is another feature of this case which completely bars. a recovery by plaintiff. By plaintiff’s own testimony as well as that of her witnesses, and by the jury’s findings, defendant’s advancing freight car could have been seen by plaintiff when it was 600 feet away. Plaintiff took no precautions whatever for her own safety. Neither did her fellow passengers nor the driver of the automobile. She made no protest when the driver of the automobile undertook to pull over onto the railway track to pass another automobile in the face of the approaching freight car. Our decisions bar a recovery under a wide variety of not dissimilar circumstances. (Kirby v. Railway Co., 106 Kan. 163, 186 Pac. 744, and citations; Knight v. Railway Co., 111 Kan. 308, 206 Pac. 893; Ferguson v. Lang, 126 Kan. 273, 268 Pac. 117; Shrewsbury v. Goodacre, 135 Kan. 230, 10 P. 2d 1; Bryant v. Marshall, 135 Kan. 348, 10 P. 2d 868; Darrington v. Campbell, 150 Kan. 407, 409, 94 P. 2d 305.) What caused this accident was as plain as the noonday sun. The driver drove onto the streetcar track in order to pass another automobile when there was manifestly neither time nor space to do so without the identical accident which happened and which was bound to happen if there had not been even a microscopical defect in the pavement. It was exactly the sort of accident which occurs every day when one automobile attempts to pass another going in the same direction regardless of an approaching car coming from the opposite direction. (Canestro v. Joplin-Pittsburg Rld. Co., 135 Kan. 337, 10 P. 2d 902.) The foregoing sufficiently disposes of this appeal, but some of the justices, including the writer, would hold that if plaintiff’s injuries did arise out of defendant’s negligence, then we would be compelled to likewise hold that plaintiff was barred by her contributory negligence, as shown by findings 5, 8 and 10. Counsel for appellee contend that contributory negligence was not pleaded. It was not pleaded in the answer. So far as the record shows the defendant railway company was not apprised of the facts which would make the defense of contributory negligence available until plaintiff had put on her evidence. But when the evidence for plaintiff did make — 141 — 'that defense clear, it was properly raised by demurrer, and later by the railway company’s motion for judgment on the pertinent special findings. We have held that when a petition does not plead the facts which would reveal a complete defense at law the defendant may deny generally and await the development of plaintiff’s evidence which does reveal such complete legal defense, and demur to the evidence. Thus in U. P. Rly. Co. v. Adams, 33 Kan. 427, 6 Pac. 529, it was said: “Where an action is brought to recover for personal injury, and the plaintiff’s testimony shows that his own negligence contributed directly to the injury, he has failed to make out a prima jade right of recovery, and a demurrer interposed to his evidence should be sustained.” (Syl- 1Í1.) In Houdashelt v. State Highway Comm., 137 Kan. 485, 21 P. 2d 343, it was held: “While the rule is that the burden is on the defendant to prove contributory negligence, it will not be interpreted to mean that if plaintiff’s own evidence shows him guilty of such negligence as precludes a recovery the defendant cannot take advantage of it.” ■ (Syl. If 3.) Other recent cases have recognized this same rule of law. (Parsons v. State Highway Comm., 146 Kan. 476, 480, 72 P. 2d 75; Cruse v. Dole, 155 Kan. 292, syl. ¶ 3, 124 P. 2d 470; Central Surety & Ins. Corporation v. Murphy, 103 F. 2d 117, headnote, ¶ 7.) See, also, Arnold & Co. v. Barner, 100 Kan. 36, 163 Pac. 805; and Mercantile Co. v. Rooney, 114 Kan. 840, 220 Pac. 1048. Turning to the cross-appeal, plaintiff complains of the trial court’s refusal to permit her to amend her petition as quoted above in our statement of facts. Belated amendments to pleadings are addressed to the sound discretion of the trial court; and it would require a much stronger showing to warrant this court in holding that the trial court abused its discretion in this case, when the motion to amend was filed three days after the verdict. We discern no basis for plaintiff’s claim that it was entitled to judgment non obstante against the city, nor in overruling her motion for a new trial against the city. Neither party asked a new trial so far as concerned the railway company. The judgment against the defendant railway company is reversed with instructions to enter judgment in its behalf. The judgment in favor of the city of Coffeyville is affirmed. Smith, J., dissents.