Fair v. The Union Traction Company

• Decision Date: 09 March 1918
• Docket Number: 21,362
• Citation: 102 Kan. 611,171 P. 649
• Parties: E. C. FAIR, Appellee, v. THE UNION TRACTION COMPANY, Appellant
• Court: Kansas Supreme Court

171 P. 649

102 Kan. 611

E. C. FAIR, Appellee, v. THE UNION TRACTION COMPANY, Appellant

No. 21,362

Supreme Court of Kansas

March 9, 1918

Decided January, 1918.

Appeal from Montgomery district court; JOSEPH W. HOLDREN, judge.

Judgment reversed and caused remanded.

SYLLABUS

SYLLABUS BY THE COURT.

AUTOMOBILE--Collision with Street Car--Proximate Cause--Contributory Negligence. The evidence and findings considered, and held, the proximate cause of a collision between a street car and an automobile was the unlawful speed at which the automobile was driven although at the moment of collision the automobile was moving at a lawful rate of speed. Held further, the plaintiff, who was an occupant, but not the driver, of the automobile, was guilty of negligence which contributed to his injury.

John J. Jones, of Chanute, and Chester Stevens, of Independence for the appellant.

Thomas E. Wagstaff, of Independence, for the appellee.

OPINION

BURCH, J.:

The action was one for damages for personal injuries sustained through the collision of one of the defendant's street cars with an automobile in which the plaintiff was riding. The plaintiff recovered, and the defendant appeals.

The automobile was driven by a doctor who was a friend of the plaintiff, and who was taking the plaintiff to his home at about eleven o'clock at night. Myrtle street in the city of Independence extends east and west. Myrtle street is crossed by streets running north and south, numbered consecutively from east to west. The plaintiff lived on the south side of Myrtle street, just west of Thirteenth street, which is fifty feet wide. In front of the plaintiff's home Myrtle street is forty feet wide. The street-car track is laid in the center of Myrtle street. At Ninth street the automobile, going west on the north side of Myrtle street, passed the street car, which was westbound. The automobile proceeded at the rate of about twenty-five miles per hour until Thirteenth street was reached. The driver then commenced to reduce speed in order to make the contemplated turn to the south to the plaintiff's home. The driver first turned to the right until near the north curb of the street, and then executed a curve to the south, going at the rate of about five miles per hour. As the automobile was crossing the street-car track, fifty-five or sixty feet west of Thirteenth street, it was struck by the street car, which was running at the rate of twenty to twenty-five miles per hour. The street car was equipped with headlights much like those of an automobile, and could be stopped within two hundred feet when running at the rate of twenty-five miles per hour.

The cause was submitted to the jury on the plaintiff's evidence, after a demurrer to the evidence had been overruled. The plaintiff and the automobile driver both testified that the plaintiff gave the driver no instructions or directions with reference to the management or operation of the automobile. The plaintiff testified as follows:

"Q. Now the street car was moving off just as you went by it? A. Yes, if I remember rightly it started up just as we went by.

"Q. Going in the same direction that you did? A. Yes, sir.

"Q. And the doctor went fast in order to keep ahead of the car? A. Yes, sir.

"Q. You knew that that street car was following you right down the street? A. That is the reason we were trying to get ahead of it or get away from it.

"Q. And for the purpose of getting away from that car you drove fast, as fast as twenty-five miles an hour? A. Yes.

"Q. You were perfectly familiar with that street car and the street-car track and the street? A. Yes, sir."

Among the defenses pleaded were the contributory negligence of the plaintiff and the excessive rate of speed of the automobile. The court refused to instruct the jury with reference to the statutory duty to operate automobiles on city streets at a rate of speed not in excess of twelve miles per hour. With the general verdict for the plaintiff, the jury returned special findings of fact, which follow:

"Q. No. 1. How far east of the point of collision could the approaching street car have been seen on the night of January 7, 1916, by one at or near the place where the automobile commenced to turn toward the track? A. 200 feet.

"Q. No. 2. Is it not a fact: (a) That the automobile was racing with the street car immediately before the collision? A. No. (b) That in order to keep ahead of the street car, the automobile was traveling at the rate of about twenty-five miles per hour from about the intersection of Ninth and Myrtle streets to about the intersection of Thirteenth and Myrtle streets? A. Yes. (c) That the plaintiff knew these facts? A. Yes.

. . . .

"Q. No. 4. How far was the street car from the point of collision when the automobile started to cross the street-car track? A. About 150 feet.

"Q. No. 5. If the automobile at no time had run at a rate of speed to exceed twelve miles per hour, could the collision have occurred at the time, place, or in the manner in which it did occur? A. No.

"Q. No. 6. Did the plaintiff or Doctor Alford, at any time, warn or otherwise inform the motorman that the automobile was about to cross the street-car track? A. No.

. . . .

"Q. No. 8. After the automobile crossed Ninth street, did the plaintiff know that the street car was following the automobile in which he was riding? A. Yes.

"Q. No. 9. If you find for the plaintiff, in what respect do you find the defendant, its agents, servants and employees negligent? A. Running too fast, not using proper signals."

A motion for judgment in favor of the defendant on the special findings was denied.

Since the plaintiff admitted and the jury found the plaintiff knew the street car was following the automobile, signals would have conveyed no information, and the jury were not warranted in basing their verdict on failure of the defendant to use proper signals. If by their finding relating to negligence the jury meant the defendant was negligent because the street car was operated at too great a rate of speed, in connection with the fact proper signals were not given, there was no basis for the verdict. If, however, the jury meant the defendant was negligent in two distinct and independent respects--running too fast and not using proper signals--the...