Burns v. The Metropolitan Street-Railway Company

• Citation: 71 P. 244,66 Kan. 188
• Decision Date: 10 January 1903
• Docket Number: 12,899
• Parties: DENNIS BURNS v. THE METROPOLITAN STREET-RAILWAY COMPANY
• Court: United States State Supreme Court of Kansas

71 P. 244

66 Kan. 188

DENNIS BURNS v. THE METROPOLITAN STREET-RAILWAY COMPANY

No. 12,899

Supreme Court of Kansas

January 10, 1903

Decided January, 1903.

Error from Wyandotte court of common pleas; WILLIAM G. HOLT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PERSONAL INJURIES--Contributory Negligence--Burden of Proof. In an action for personal injuries, based on the negligence of a defendant, the burden of proof is on the latter to show contributory negligence on the part of the plaintiff, unless the evidence introduced by the plaintiff to sustain his case tends to show that his want of care contributed to the injury.

2. PERSONAL INJURIES--Street-railway Crossing--Duty of Traveler. A traveler on a city street, who is about to cross the tracks of an electric street-car company, must exercise his faculties of sight and hearing, and, under special circumstances, must use other careful and prudent means to ascertain whether a car is approaching.

3. PERSONAL INJURIES--Railroad Rule Applied. The prevailing rule respecting the care required of a traveler over steam-railway tracks applied to one crossing a street-railway.

4. PERSONAL INJURIES--Reciprocal Rights Considered. The reciprocal rights of the traveler and a street-car company considered.

H. G Pope, and L. F. Bird, for plaintiff in error.

Miller, Buchan & Morris, for defendant in error.

SMITH J. All the Justices concurring.

OPINION

SMITH, J.:

The plaintiff in error was injured in a collision between an express-wagon in which he was riding and an electric trolley-car operated by defendant in error. He was attempting to drive over the rails of the company on Union avenue, in Kansas City, where the cars run nearly east and west, on double tracks. He was going north. He stopped until a west-bound car passed in front of him, but was struck by a car going east on the south track. There were two hacks, which were six or seven feet high, standing in the street near to, and west of, his wagon before he started to cross. The street-car was about twelve feet high. Burns testified that he first saw the car about twenty feet distant, after his wagon was well onto the tracks; that no bell was rung or other signal given by the motorman. One of the witnesses for plaintiff below testified that Burns did not look toward the west for an approaching car, and that it could be seen for the distance of a block. The plaintiff below was familiar with the track, the running of cars and all surroundings. The railway company answered, denying generally the allegations of the petition, and also charged the plaintiff with contributory negligence. Both plaintiff and defendant below introduced evidence in support of the issues in the case. There were verdict and judgment for the street-car company.

Plaintiff in error complains, first, of the refusal of the court to give to the jury the following instruction:

"The burden of proof in this case is upon the defendant to prove that the plaintiff was negligent, and that his negligence directly contributed to the injury complained of, and it must establish such fact by a preponderance of the evidence."

The instruction tendered leaves out of consideration any negligent act of Burns appearing in the evidence introduced to support his side of the case. It is misleading in that it tends to minimize the effect of any negligent conduct of his which might have defeated the action had the railway company introduced no evidence. If the plaintiff below, in establishing his case, had shown that his own negligence contributed directly to the injury, he would have failed to make out a prima facie right of recovery; such case the giving of the instruction asked would lead the jury to believe that some affirmative proof introduced on the part of the railway company, tending to show such contributory negligence as the plaintiff had already shown, was necessary to defeat a recovery.

In Railroad Co. v. Burrows, 62 Kan. 89, 61 P. 439, an instruction in a personal-injury case, which told the jury that, before the defendant could avail itself of the plea of contributory negligence of the plaintiff, it must establish by the fair weight of the evidence the facts in such plea was held to be misleading. See, also, Railway Co. v. Merrill, 61 Kan. 671, 60 P. 819. The instruction under consideration does not differ in substance from those criticized in the two cases above cited. The fault to be found in it lies in the omission of the qualifying condition that the burden of proof is not thrown on ...