Dearing v. The Wichita Railroad and Light Company

• Decision Date: 08 March 1930
• Docket Number: 29,175
• Citation: 130 Kan. 142,285 P. 621
• Parties: HARRIET DEARING, Appellee, v. THE WICHITA RAILROAD AND LIGHT COMPANY, Appellant
• Court: Kansas Supreme Court

285 P. 621

130 Kan. 142

HARRIET DEARING, Appellee, v. THE WICHITA RAILROAD AND LIGHT COMPANY, Appellant

No. 29,175

Supreme Court of Kansas

March 8, 1930

Decided January, 1930.

Appeal from Sedgwick district court, division No. 4; ISAAC N WILLIAMS, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

STREET RAILROADS -- Injury to Pedestrians -- Contributory Negligence -- "Last Clear Chance" Doctrine. In an action for damages for injuries sustained by plaintiff in being struck by defendant's street car in a city street midway between street crossings, defendant's negligence in operating its street car was established by the evidence and so found by the jury. Plaintiff's contributory negligence was also established and the trial court so instructed the jury, but added that plaintiff might recover notwithstanding her own negligence under the doctrine of the last clear chance. Record examined and held that neither the evidence nor the special findings, nor any circumstances inferable from either, disclosed an opportunity for the application of that rule of law, and the judgment in favor of plaintiff was erroneous.

Robert F. Foulston, George Siefkin, Sidney L. Foulston, Lester L. Morris and George B. Powers, all of Wichita, for the appellant.

John W. Adams and O. R. Nelson, both of Wichita, for the appellee.

OPINION

DAWSON, J.:

This was an action for damages for injuries sustained by plaintiff in being struck and injured by one of defendant's street cars in Wichita.

The pertinent facts were these: Main street in Wichita runs north and south. Defendant has a double line of car tracks in that street. Second and Third streets intersect Main street at right angles. On August 23, 1927, about 6:30 a. m., plaintiff started from a point on the west side to cross Main street diagonally toward the southeast between Second and Third about midway of the block. When she reached the east rail of the west car track her attention was attracted to an automobile coming rapidly from the south. This caused her to hesitate, and just at that moment one of defendant's cars came from the north at high speed and struck the plaintiff, knocked her down, and dragged her by her clothing for a considerable distance. She was variously bruised and injured.

In her petition plaintiff charged defendant with negligence in operating its car at a high and dangerous rate of speed, and at an excessive speed under the city ordinances, and without ringing any bell or giving any signal of its approach, and without having the car under proper control, and--

"That the said defendant was guilty of further negligence, acting as aforesaid, in that the said defendant, by and through its duly authorized agent, and servant and motorneer in charge of said street car, saw or could have seen, in the exercise of ordinary care, and did see that the plaintiff was in a position of danger, and failed to slacken the speed of said street car, or stop the same, or attempt to stop said street car, and avoid injuring this plaintiff, as herein alleged."

Plaintiff prayed for $ 3,000.

Defendant joined issue on these allegations, and pleaded contributory negligence on the part of plaintiff.

The cause was tried before a jury. The evidence for plaintiff tended to prove the negligence of defendant, but also showed that plaintiff herself was guilty of contributory negligence. The court gave an instruction to that effect, with the addition, however, that if the motorman had a last clear chance and failed to seize it to avoid injuring plaintiff after discovering the peril her own negligence had gotten her into, defendant would be liable. The instruction read:

"No. 8. . . . The court instructs you that the plaintiff was guilty of negligence in not looking to see whether or not there was a street car coming from the north, and you are further instructed that her negligence will bar a recovery in this case unless it satisfactorily appears to you from the evidence that after the plaintiff reached the position of danger from which she could not extricate herself, that the motorman of the defendant company, when he saw, or should have seen, plaintiff's peril, did not exercise reasonable care to avoid injuring the plaintiff. If you find that the motorman saw, or in the exercise of ordinary care and prudence, ought to have seen, the plaintiff's position of danger in time to have avoided the injury and that he failed to do so, then in that event the plaintiff might recover."

The jury returned a verdict for $ 700 in favor of plaintiff and answered certain special questions, some of which read:

"No. 3. Did the plaintiff see the approaching street car before she went upon the street-car tracks? A. No.

"No. 4. If you answer that preceding question in the negative, state what prevented her from seeing the approaching car. A. Automobile.

"No. 5. In what part of the block did the accident happen? A. About midway.

"No. 6. What negligence, if any, do you find as against the defendant street-car company? A. Excessive speed limit; no warning given, not watching his track, ahead."

Judgment was entered for plaintiff and defendant assigns various errors, only one of which will need attention.

Since the trial court instructed the jury that plaintiff herself was guilty of negligence in not looking to see whether or not there was a street car coming from the north before she stepped on the streetcar track, and that ruling was acquiesced in by plaintiff, the propriety of the verdict and judgment depends upon the question whether there was an opportunity for the doctrine of the last clear chance to operate. On this point the brief of appellee gives us no assistance. Her counsel reiterate the allegations of her petition concerning defendant's negligence and cite the evidence in their support, all of which would be valuable if we were considering the question whether or not defendant was negligent. But our problem is beyond that question. The jury's verdict was a finding that defendant was negligent, and we approach our problem with that fact established. The trial court's instruction, which indeed was in accord with the plaintiff's own evidence and with the jury's special finding No. 3, was explicitly that the plaintiff was negligent and that her negligence would bar a recovery unless the rule of the last clear chance would save her cause of action.

Defendant contends that there was no opportunity for the doctrine of last clear chance to operate. In Jamison v. Atchison, T. & S. F. Rly. Co., 122 Kan. 305, 252 P. 472, plaintiff was injured at a railway crossing. The jury found the railway company negligent on the debatable ground that it should have slowed down and had the train under control. Plaintiff's contributory negligence was likewise established by his own testimony, and the court so instructed the jury, but left it for the jury to say whether the circumstances would permit the application of the doctrine of last clear chance. This court said:

"The doctrine can be invoked in negligence cases only when the party relying upon it has by his own prior negligence gotten himself into a predicament from which his subsequent diligence will not avail to extricate him without injury or damage through the act or delict of another party, but where such other party has a fair opportunity--a last clear chance--to...