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ROGERS v. OMEGA CONCRETE SYSTEMS6/17/1994
REPORTER'S NOTE: Previously filed as an unpublished opinion, the Supreme Court granted a motion to publish by an order dated September 9, 1994, pursuant to Rule 7.04 (1993 Kan. Ct. R. Annot 36).
George Earl Rogers and Matthew Rogers were father and son. Matthew, at the time of his death, was employed by Omega Concrete Systems, Inc. (Omega). Since Matthew did not have a driver's license, George drove him to work nearly every day for several years. In order to deliver Matthew to the Omega job site, the parties had to travel over a private road on land owned by the Union Pacific Railroad Company (UP). This road was accessed by traveling down highway K-32 and then turning south. The private road also crossed the UP railroad tracks. On the tragic day which gave rise to these proceedings, George drove in front of a UP train, and both he and Matthew were killed. Blood tests performed on each man indicated that George had not been drinking prior to the accident but that Matthew had a blood alcohol concentration of .219. The heirs of George and Matthew brought this wrongful death action, seeking to recover damages from Omega, alleging that its negligence had caused or contributed to the accident. The plaintiffs previously settled with other named defendants, including UP, St. Louis Southwestern Railway, and the City of Kansas City, Kansas. The trial court granted summary judgment in favor of Omega, and the plaintiffs appeal.
The day of the fatal accident was bright and clear. At approximately 6:40 a.m., George turned off K-32 onto a private road leading to the Omega job site. This private road (hereafter road) ran across two UP railroad tracks; the crossing was within 145 feet of the entrance to the road, and the tracks had to be crossed to reach Omega.
There were eyewitnesses to the fatal accident. These witnesses observed the Rogers car turn onto the road at a speed of 15 to 20 miles per hour and proceed to the railroad crossing without stopping or slowing down. One witness observed George look to his left before reaching the crossing but testified that he never did look back to his right. The UP train was coming from the right side of the Rogers vehicle. The vehicle entered the crossing
without slowing down or stopping and was struck by the train. Both men were killed instantly.
The focus of the cause of action against Omega is a "Private Road Agreement" (hereafter Agreement) signed by Omega in 1973.
The evidence indicates that the railroad tracks had been at the location in question since 1888. The crossing, at the time of the accident, was very busy with trains passing over it at regular intervals.
The predecessor of Omega was a company known as Stewart Sand and Material Company (Stewart). Apparently, access to Stewart was difficult, and no road was available to reach the area. The result was that, in 1957, Stewart and UP entered into an Agreement which granted to Stewart "the right to construct and thereafter, during the term hereof, to maintain and use said Private Road across said right of way and over said tracks located thereon." In the agreement, Stewart is referred to as a "Licensee" and it is made apparent that Stewart "desire the construction . . . of a private road." In 1974, Omega was made a party to the Agreement, and all references to obligations and duties under the Agreement will refer to Omega.
While Omega was to maintain the road under the terms of the Agreement, UP agreed to construct the crossing over the road at the expense of the licensee and agreed to install "traffic warning signs and whistling posts." UP did, in fact, install the signs and whistling posts. The evidence further indica
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