# Kendrick v. Atchison, Topeka & Santa Fe Railroad

> Supreme Court of Kansas · January 25, 1958 · 182 Kan. 249

URL: https://www.frixlaw.com/law-library/cases/9563706

## Case

- **Full name:** Donald F. Kendrick, Appellant, v. the Atchison, Topeka & Santa Fe Railroad Company, Appellee
- **Court:** Supreme Court of Kansas
- **Decided:** January 25, 1958
- **Citations:** 182 Kan. 249; 320 P.2d 1061; 1958 Kan. LEXIS 245
- **Precedential status:** Published
- **Opinion:** Dissent by Price
- **Judges:** Hall, Parker, Price
- **Cited by:** 46 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9563706

## Opinion text

Price, J.,
dissenting: I do not agree to the disposition being made of this case and think that the demurrer was correctly sustained.
As between these two litigants, the crux of this case is proximate cause. Plaintiff’s own testimony affirmatively establishes that he saw the train and warned the driver in ample time for him to slow or stop. The warning went unheeded. Assuming, but not conceding, the whistle was not blown, the fact remains that had it been blown 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. Negligence, in order to be actionable, must constitute the proximate cause of an injury. From plaintiff’s evidence it is not even debatable that the sole proximate cause of this unfortunate collision was the negligence of the driver in driving his automobile into the side of the train.
In my opinion the decision reached in this case tends “to mold the law to fit the facts,” whereas the proper function of courts is to measure the facts in the light of established law!
I would affirm the ruling below, and therefore respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9563706. Public record. Not legal advice.