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

ON MOTION FOR REHEARING. In her motion for a rehearing the appellant points out that we have misstated a fact. It is said that our determination of this cause is based on that erroneous misstatement of fact. To demonstrate that Mrs. Murphy could and would have backed the automobile off the track within the 300 to 350 feet (the three to three and a half seconds) we said that her expert witness, a service manager of a Chevrolet company made certain tests and that "He placed a 1941 Chevrolet business coupe upon the track so that the bumper would extend to the inner rail and by a stop watch backed it clear of the tracks in `two to two and a half seconds.'" We said: "To the rhythm of a stop watch he said: `I was able to back off there in two to two and a half seconds.'" The misstatement consists in the use of the word "stop." A "stop watch" [833] was not used and no witness used the word "stop." The fact is the witness said: "Well, the test that we made was by driving up onto the railroad track to where the front of the bumper, the foremost front part of the bumper would extend to the inner rail, and backing it back clear of what a locomotive would clear, the clearance of a locomotive back off the crossing. We did that in something like two seconds, two seconds and a half by the watch.We arrived at that time by observing the second hand on thewatch and counting it in a manner of 1, 2, 3, as seconds, and bymaking the test trial I was able to back the coupe off of therein two to two and a half seconds." Or, as appellant's counsel state in their brief: "In making the tests they practicedcounting seconds as nearly as possible with the rhythm of thesecond hand of a watch, and then counted as they drove the automobile. The car was started and driven clear of the track, as the other called off, one, two, three, and the seconds and partsof a second were thus estimated, and the time estimated as from two to two and a half seconds." But modifying the opinion accordingly, striking out the word "stop," and using the language of the witness or counsel's paraphrase of it, "with the rhythm of the second hand of a watch," the fundamental, determinative facts remain unchanged.

It is true that all the evidence as to time and distances was an "estimate" based on best judgment and in dealing in half seconds, two and a half seconds or even three seconds reasonable minds may differ and a calculation of four or five tenths of a second may be "too inexact and approximate to be convincing with the time factor so infinitesimal," State ex rel. Alton R. Co. v. Shain, 346 Mo. 681, 691, 143 S.W.2d 233, 238. But in this case the only evidence we have as to time is the appellant's evidence and, however it was determined, it is a maximum of two and a half seconds. Here there were no conflicts in the estimates in question. It is true that the time was determined by an "expert" but in using the established time we do not hold that the appellant, as a matter of law or duty, was bound to act with the precision and care of an expert. Neither do we hold that by reason of experiments conducted by an expert, not then in peril or acting under an emergency, that the appellant is conclusively bound by the experiment in every detail. Again we repeat, the only evidence we have in all the case, by which the appellant's conduct is to be judged, under the Kansas last chance doctrine, is her own evidence and though it comes from an "expert" it is all there is and it is "two to two and a half seconds" and her case must be adjudged accordingly.

The point is that the appellant's own evidence, the only evidence there is on the subject, shows that when the train was three to three and a half seconds away she needed but two or two and a half seconds for safety and if that is all the time needed by her own evidence she had it and yet she failed to utilize it or avail herself of it. Thus, under her own evidence she demonstrates, at best, equal power and chance with the railroad to avoid the catastrophe and under such a showing reasonable minds may not differ and find liability under the last chance doctrine of Kansas. Here the appellant's evidence shows that she could have avoided the collision or, at best, that both she and the railroad could have done so and that demonstrates concurrent as well as contributory negligence and bars recovery under the law of Kansas. Dyerson v. Union Pac. R. Co., supra; Goodman v. K.C.M. S.R. Co., supra; Bollinger v. St. L.-S.F. Ry. Co., supra.

Accordingly the opinion is modified as indicated and the motion for a rehearing is overruled. The motion to transfer to the court en banc is denied.