Atherton v. The Topeka Railway Company

• Decision Date: 05 June 1920
• Docket Number: 22,283
• Parties: J. T. ATHERTON, Appellee, v. THE TOPEKA RAILWAY COMPANY, Appellant
• Court: Kansas Supreme Court

190 P. 430

107 Kan. 6

J. T. ATHERTON, Appellee, v. THE TOPEKA RAILWAY COMPANY, Appellant

No. 22,283

Supreme Court of Kansas

June 5, 1920

Decided January, 1920.

Appeal from Shawnee district court, division No. 2; GEORGE H WHITCOMB, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

NEGLIGENCE--Collision between Truck and Street Car--Concurrent Negligence--"Last Clear Chance." The trial court correctly charged that after plaintiff's truck was negligently driven between the street car tracks and the plaintiff was in a position of peril and his own negligence had ceased, the defendant would be liable if it saw or by the exercise of ordinary care could have seen him in such position in time to avoid injuring him, and failed to do so.

Leonard S. Ferry, Thomas F. Doran, M. F. Cosgrove, and Clayton E. Kline, all of Topeka, for the appellant.

W. E. Atchison, and J. J. Schenck, both of Topeka, for the appellee.

OPINION

WEST, J.:

The defendant appeals from a judgment recovered by the plaintiff for injuries sustained while in a transfer truck which had been driven across the defendant's tracks between two cars going in opposite directions, one of which collided with his truck and shoved it against an iron trolley pole, and the other of which collided with his truck, severely injuring him.

It seems quite likely that the cars were both running in violation of the speed ordinance of the city, and the plaintiff was crossing in a manner prohibited by another ordinance providing how a vehicle should cross a street.

The court instructed that under the facts the plaintiff was guilty of negligence by going upon the tracks in the way he did, and that such negligence would prevent his recovery unless he was allowed to recover under the doctrine of last clear chance; that if his own negligence continued up to and actually contributed to the injury he could not recover.

"But, although plaintiff was guilty of negligence in placing himself in a position of danger, . . . yet if his negligence had ceased and the defendant, . . . by the exercise of ordinary care, ought to have seen the danger to plaintiff in time to avert the same, and failed to do so, or . . . actually saw plaintiff's danger in time to avert the same by the exercise of ordinary and reasonable care under the circumstances, . . . and failed to do so . . . then the defendant is responsible for any injury directly resulting to plaintiff from such failure to exercise ordinary care in either case."

Among the answers to special questions returned by the jury were the following:

"Q 6. Did the plaintiff have time to leave the van after it was struck by the east bound car, while it was being shoved down the street to the trolley pole, and avoid injury, before it was struck by the west bound car? A. 6. So confused had no time.

"Q. 7. What, if anything, did the plaintiff do to escape injury, after the van or truck was struck by the east bound car, while it was being shoved down the track to the trolley pole, and before it was struck by the west bound car. A. 7. Nothing could be done.

"Q. 8. Could not the plaintiff, by looking and listening and taking proper precautions for his own safety, have stopped his truck or have caused his truck to be stopped before it went upon the defendant's tracks, while it was in a position of safety, and thus have avoided being struck by either the east bound or west bound car? A. 8. Yes, by remaining in the position he was in before starting.

"Q 9. If you answer the...