Kendrick v. Atchison, Topeka & Santa Fe Railroad , 182 Kan. 249 ( 1958 )

Schroedeb, J.,

(concurring specially): Under all the facts and circumstances presented by the record in this case the proximate cause of plaintiff’s injury remains a question of fact for the jury in my opinion. It is contended that even if the whistle had been sounded, the act of doing so would not have given any further notice to plaintiff than what he already had, and which he had already imparted to the driver. This sounds convincing until other evidence, not heretofore disclosed in the opinion, is revealed.

The testimony discloses that plaintiff and Matthews, who were riding in the back seat of the auto, jested with each other. The plaintiff (Kendrick) testified on direct examination:

“Q. What did you do with it (the comic book plaintiff was reading while riding in the automobile prior to accident)?

“A. Well, we got up to Akron, and of course Tod (Tolliver Matthews) and I we were always cutting up anyway, and I just kind of flipped it over in his lap, as a gesture of, oh, like a comedian would.”

Matthews on direct examination testified:

“Q. Do you recall whether or not Donald Kendrick had been reading?

“A. Yes, he had been.

“Q. Do you know when he quit?

“A. Somewhere along around in Akron, there, I think he hit the book at me.

“Q. You think he did what?

"A. I think he threw the book at me.

“Q. What do you mean threw the book at you?

“A. Oh, just tossed it over in my lap.

“Q'. Did you read it?

“A. Well, I picked it up and looked at it and I seen I had read it, and I think that’s when I noticed the train, I turned around to throw the book back.”

Thus, the moral in the old fable of the shepherd boy, who after one false alarm shouted “Wolf” a second time in truthful need but without response from his neighbors, may have practical application here. A jury may find that the driver (Manley) did not comprehend the significance of the warning given by the passengers in the auto because their previous conduct in jesting with each other had the effect of misleading him. Under such circumstances a jury was entitled to determine whether failure to sound a whistle, if this be a fact, was a contributing proximate cause of the injury. Here the court is not confronted with successive acts of negligence as in Hickert v. Wright, 182 Kan. 100, 819 P. 2d 152, but with concurrent acts of negligence.

Whether plaintiff’s conduct in jesting was sufficient to bar his recovery on the ground of contributory negligence, likewise remains for a jury to determine.

Another circumstance indicated by the evidence, not heretofore disclosed, is significant. Several witnesses testified that as one approached the railroad crossing in the manner herein disclosed on the day and at the time in question the sun was in such location that it shone directly into the eyes of a driver, unless the eyes were shaded, when looking up the track for a train in the direction from which this train was coming.

Taking into consideration all of the facts and circumstances disclosed by the record herein, I fully concur in the court’s opinion.