
    The Missouri, Kansas & Texas Railway Company et al. v. W. B. Jenkins.
    No. 14,800.
    (98 Pac. 208.)
    Railroads —■ Injury at a Crossing — Contributory Negligence. The rule applied that if one about to cross a railroad track voluntarily creates such conditions that he can not by looking without stopping see an approaching train in time to prevent a collision he assumes the additional duty to stop and look, if by so doing he can protect himself.
    Error from Miami district court; Winfield H. Sheldon, judge.
    Opinion filed November 7, 1908.
    Reversed.
    
      J ohn Madden, W. W. Brown, and J. E. Maxwell, for plaintiffs in error.
    
      Frank M. Sheridan, for defendant in error.
   Per Curiam:

While W. B. Jenkins was driving across the track of the Missouri, Kansas & Texas Railway Company his team was run into by a train, and he received injuries on account of which he sued the company, recovering a judgment to reverse which this proceeding is brought. The accident was the same as described in Railway Co. v. Jenkins, 74 Kan. 487, 87 Pac. 702, where it was held that the contributory negligence of the driver prevented a recovery. The plaintiff contends that differences in the evidence and findings prevent the rule there announced from being applicable here. The proposition determinative of that case was that if one who is about to cross a railroad track voluntarily creates such conditions that he can not by looking without stopping see an approaching train in time to prevent a collision he assumes the additional duty of stopping to look, if by so doing he can protect himself.

In the present case the jury found these facts: The plaintiff was in a lumber wagon, driving his team while standing about two feet from the rear end. Nothing prevented him from standing in the front instead of the rear'end if he had so desired. 'From where he stood his view of the track in the direction from which the train was coming was cut off by various obstacles until just before his horses stepped upon the track. Then he could see along the track for a distance of about 130 feet. His team was walking; it was gentle, and under his control at all times until just prior to the accident. He could have stopped it before going on the track1 if he had wished to do so. He drove upon the track without stopping to look and listen. The train, which was running at the rate of thirty miles an hour, struck the horses just behind the shoulders, as they were stepping on the track. Just before it struck them plaintiff attempted to pull them around off the track.

From these findings it appears that if the plaintiff had stood near the front of the wagon he could have seen the train while his horses, proceeding at a walk and under full control, were at a considerable- distance from' the track—probably about eight feet. It is equally clear that if, just before driving upon the track, he had stopped to look he would have seen the train and the accident would have been prevented. Within the principle of the earlier case, having voluntarily chosen such a position for driving that merely looking without stopping would not give him notice of the danger in time to avoid it, he assumed the additional duty of stopping to look,.and his neglect of that precaution barred his recovery.

Another finding suggests that the judgment might be upheld under the “last clear chance” doctrine. To the question “Did the employees of the defendant company in charge of the train discover the peril of the plaintiff too late to prevent the injury by the exercise of ordinary care and prudence?” the jury answered “No.” If this meant that the trainmen saw the plaintiff in time so that they could then by the exercise of ordinary diligence have avoided the collision, it would of course be fatal to the defendant’s case. But it is open to the construction that the employees in charge of the train did not discover the plaintiff at-all; and that this is what the jury had in mind is evident from the fact that in reply to another question they said that the trainmen could not have done anything after seeing the plaintiff to prevent the accident.

The judgment is reversed, and a judgment for the defendant ordered on the findings.  