
    No. 19,060.
    A. Frank Butts, Appellee, v. The Atchison, Topeka & Santa Fe Railway Company, Appellant.
    
    SYLLABUS BY THE COURT.
    
      Railroads — Dangerous Crossing — Duty of Traveler — “Stop, Look” — Contributory Negligence. A traveler whose deafness prevented him from hearing the warning signals of an approaching train at a dangerous crossing with which he was familiar, drove upon the track and was struck by the train and injured. His failure to stop and look from a position where he could have seen the train in time to avoid the injury is contributory negligence which will prevent his recovery in an action against the railway company.
    Appeal from Harvey district court; Frank F. Prigg, judge.
    Opinion filed March 6, 1915.
    Reversed.
    
      William R. Smith, Otven J. Wood; Alfred A. Scott, all of Topeka, and William Osmond, of Great Bend, for the appellant.
    
      Ezra Branine, and Harry W. Hart, both of Newton, for the appellee.
   The opinion of the. court was delivered by

Porter, J.:

This is a railway-crossing case in which the plaintiff recovered a judgment, from which the defendant appeals.

The material facts are not in dispute. They appear from the plaintiff’s testimony as well as by the special findings of the jury. The accident occurred in the railway yards at Newton, about half a mile southwest of the station where First street Crosses twelve tracks at an angle of about 45 degrees. It occurred on the eighth of these tracks, counting from where the plaintiff approached the right of way. It was in the middle of the afternoon of a bright, clear day in September. The plaintiff was going in a southeasterly direction, and was driving a horse and light road wagon. He was very deaf. He was familiar with the crossing and had traveled over it every day for several years. The train which struck him was a passenger train, coming from the southwest, and the jury found that it was running at an excessive rate of speed. The engine bell was ringing from the time the train entered the city limits up to the time of the accident, but on account of the plaintiff’s deafness he was unable to hear it. After coming upon the right of way there was a clear view of the railway tracks for a distance of about a mile southwest, unless the view was temporarily obstructed by the presence of cars or engines upon some of the tracks. The obstructions which prevented the plaintiff from seeing the approach of the train when he first came upon the right-of-way consisted of cars standing on what is known as the “stockyards track,” and also a moving switch engine with some cars attached which were upon the second track from the place of the accident. After reaching this second track and passing the switch engine, plaintiff had an unobstructed view fo;r one-half mile of the track upon which the passenger train was approaching. • It was twenty-eight feet from the track where the switch engine was to the track where he was struck, looking at right angles, but if the plaintiff followed the center of the street in the general direction he was going, the distance was forty-eight feet between the track upon which the switch engine stood and the track where the accident occurred. The plaintiff testified that he was looking and watching for trains, but the undisputed facts disclosed- by his evidence show that this can -not be true. His horse’s head was over the first rail of the track when plaintiff discovered the train. The plat introduced by the plaintiff showing the location of the tracks, and his own evidence and that of other witnesses who testified for him, show beyond controversy that he could have seen the passenger train if he had looked after he reached the track where the switch engine had obstructed his view. He was then at least forty feet from the point at which he testified he first saw it.

The jury found that the railway company was negligent in running its train at an excessive rate of speed. Conceding the negligence of the company as established, the plaintiffs own negligence, under repeated decisions of this court, prevents his recovery. The jury made a finding that after the plaintiff entered upon the right of way there was no place where, if he had kept a constant lookout, he would have seen the approach of the train in time to avoid the accident, but this finding is in direct conflict with the undisputed facts as disclosed by all the testimony. The plaintiff testified that he first saw the approach of the train when his horse’s head was over the first rail of the track. The track upon which the switch engine was moving, and which had up to that time obstructed his view, was twenty-eight feet in a direct line from the track where he was struck, but, as stated, the distance between the two tracks following the center of the street, was forty-eight feet.

We may leave entirely out of consideration the various obstructions which interfered with plaintiff’s view before he reached a place where the switch engine and cars on the second track no longer prevented him from seeing. After he reached this point he had, if he had looked, an unobstructed view for a great distance to the southwest, and must necessarily have seen the approaching train if he had looked in that direction. Because of his deafness he was obliged to rely entirely upon what he could see. In such a situation common prudence made it his duty to stop, if necessary, and look; but in any event, it certainly required that he look before driving his horse upon the track.

The duty of a traveler in approaching a railroad crossing has been so frequently stated in former decisions that it will only be necessary to refer to a few of them which demonstrate that the trial court should have sustained the demurrer to the evidence. The passing switch engine and cars obstructed plaintiff’s view and. made it unsafe for him to proceed across this network of tracks until the switch engine and cars' had passed and he could obtain a view of the other tracks. The obstruction was a temporary one, and ordinary care for his own safety required him to check his progress until the obstruction passed. Exactly the same principle was applied in the case of C. K. & W. Rld. Co. v. Fisher, 49 Kan. 460, 30 Pac. 462. In the opinion it was said:

“We think the judgment of the court below must be reversed. In our opinion, it is the duty of any person intending to cross a railroad track where he knows that trains frequently pass, and where he knows that one is likely to pass at any moment, to look as well as to listen, and if dust should temporarily obscure his view, to wait until the dust shall pass away before he attempts to cross.” (p. 485.)

To the same general effect is Bush v. Railroad Co., 62 Kan. 709, 64 Pac. 624; Railroad Co. v. Willey, 60 Kan. 819, 58 Pac. 472; Carlson v. Railway Co., 66 Kan. 768, 71 Pac. 587; Railway Co. v. Jenkins, 74 Kan. 487, 87 Pac. 702, and 79 Kan. 17, 98 Pac. 208; Bressler v. Railway Co., 74 Kan. 256, 86 Pac. 472; Railway Co. v. Wheelbarger, 75 Kan. 811, 88 Pac. 531; Beech v. Railway Co., 85 Kan. 90, 116 Pac. 213; Palmer v. Railway Co., 90 Kan. 57, 60 Pac. 736. In the case last cited it was said:

“Where a traveler, approaching a dangerous crossing at the rate of from six to eight miles an hour, where the track is obstructed, fails to stop to look or listen, and drives upon the track and is injured, he is guilty of contributory negligence, barring recovery.” (Headnote.)

The judgment must be reversed and the cause remanded with directions to render judgment for the de-' fendant.

Johnston, C. J., and West, J., dissenting.  