Balthrop v. Atchison, Topeka & Santa Fe Railway Co.

McMURRAY, J. pro tem.

*

After a jury verdict in favor of defendants the court granted a motion for a new trial upon the grounds that the evidence was insufficient to sustain the verdict; that there was error in an instruction given by the court; and that facts were concealed by a juror in his answers on

voir dire.

The action arose out of a railroad crossing accident in which plaintiff’s car was struck by defendants’ train.

Appellants complain that the order for a new trial should not have been made, that the court abused its discretion, because, appellants urge, the respondent’s own testimony and evidence introduced by him established that as a matter of law he was guilty of contributory negligence.

The accident here involved occurred shortly after midnight at a crossing on appellants’ mainline tracks. The crossing was a nonobstructed country crossing, and respondent was familiar with it. At the time of the accident there was no wigwag, blinker, or other automatic crossing signal at this crossing, but the highway was posted with a standard highway sign, an advanced disc shaped railroad warning sign and a painted pavement warning sign, some 200 feet south of the crossing. The train consisted of a power unit and eight cars. The evidence was conflicting as to whether or not the warning whistle was being sounded as the train approached the crossing at an admittedly high rate of speed, estimated up to 85 miles an hour. All parties agree that it was a foggy night, although there is conflicting evidence as to the extent of visibility.

Bespondent testified that he stopped his ear several hundred feet from the crossing, that he got out, walked around a bit and then reentered the car and drove almost all the

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way across the tracks without again stopping before the train hit his car. He testified that he looked to his right and left before he crossed the tracks but did not see anything. His windshield wipers were operating, and the window by the driver’s seat was rolled down. The respondent claims that he was driving slowly at all times.

Appellants claim the respondent was negligent in looking for the train, because the tracks across the road are at an acute angle, and if one looked to the right and left he would not see the track; he would see open fields; that in order to exercise ordinary care, being familiar with the crossing as was respondent, respondent should have looked almost directly to his rear. This, it would appear, is a somewhat rigid construction of the respondent’s testimony. When one says he looks to the right and left, it does not necessarily mean that he looks exactly to the right and exactly to the left, but may well mean that he looked to the entire arc of vision to his right or left. Appellants further claim that upon cross-examination the testimony of respondent that he did not hear any train whistle, any train bells, or any noise of the train, shows contributory negligence. Again we feel that this testimony may well be construed to mean that he listened but did not hear, and we take it to be the rule that “where it is shown that a driver has exercised some care, the question whether or not the care actually exercised was due and sufficient will always be a matter for determination by the jury.”