Consolidated & C.P. Ry. Co. v. Wyatt

• Decision Date: 05 February 1898
• Citation: Consolidated & C.P. Ry. Co. v. Wyatt, 52 P. 98, 59 Kan. 772 (Kan. 1898)
• Parties: CONSOLIDATED & C. P. RY. CO. v. WYATT.
• Court: Kansas Supreme Court

52 P. 98

59 Kan. 772

CONSOLIDATED & C. P. RY. CO. v. WYATT.

Supreme Court of Kansas

February 5, 1898

Error to district court, Wyandotte county; Henry L. Alden, Judge.

Action by Lillie G. Wyatt against the Consolidated & Chelsea Park Railway Company.Pending the action, plaintiff died, and Timothy Lyons, administrator of her estate, was substituted as plaintiff.There was a judgment for plaintiff, and defendant brings error.Reversed.

Frank Hagerman and Pratt, Dana & Black, for plaintiff in error.

Morse & Morse, for defendant in error.

Opinion

PER CURIAM.

Action against the railroad company to recover damages for personal injuries alleged to have been negligently inflicted upon Lillie G. Wyatt by the company.She was struck by an electric car at a street crossing, and in the collision her foot was cut off.It was claimed that the company was negligent in running at a rapid rate of speed, and in failing to keep a proper lookout and give proper warnings of the approach to the crossing.On the other hand, it was alleged that Lillie G. Wyatt failed to exercise ordinary care, and that her injuries were the result of her contributory negligence.At the time of the accident she was 11 years and 5 months of age, and went upon the track without looking, or taking any precautions to discover the approach of cars.There is testimony that the person in charge of the car was looking in another direction, and failed to give any signals, and further, that the rate of speed was unusually high.It is contended that upon the evidence the plaintiff was not entitled to recover, and that the court should have so instructed the jury.Although she was nearly 11½ years old, lived near the crossing, and was familiar with the running of cars it cannot be said, as a matter of law, that she is to be held to the same measure of responsibility as an adult.Her age experience, and intelligence are to be taken into consideration in determining the degree of care to be required of her, and these were facts for the jury.Some of the special findings, however, are inconsistent with each other, as well as with the general verdict.The jury found that Lillie G. Wyatt went upon on a skip to the railroad track where the collision occurred, without looking or listening for the coming of a car; that there was nothing to obstruct her view for a distance of about three blocks from the place where the accident occurred; that there was nothing to prevent her from seeing the car approaching in time to have stopped before going upon the track, if she had looked that ...