Goodman v. Kansas City, M. & S.R. Co.
| Decision Date | 06 May 1933 |
| Docket Number | 30923. |
| Citation | 137 Kan. 508,21 P.2d 322 |
| Parties | GOODMAN v. KANSAS CITY, M. & S. R. CO. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Plaintiff by relying for recovery solely on doctrine of last clear chance, necessarily concedes contributory negligence.
In action for injuries sustained when plaintiff's automobile was struck by interrurban electric car at crossing, evidence held insufficient to sustain recovery under last clear chance doctrine.
In an action for damages for injuries sustained in a collision at a railway crossing, in which plaintiff predicated his right to recover on the doctrine of the last clear chance, the record is examined, and it is held, that the doctrine is not applicable to the facts shown by the record.
Appeal from District Court, Wyandotte County; C. A. Miller, Judge.
Action by James Goodman, a minor, by and through his father and next friend, Joseph Goodman, against the Kansas City, Merriam & Shawnee Railroad Company. From a judgment in favor of the plaintiff, the defendant appeals.
Reversed with directions.
James E. Smith and Clayton M. Davis, both of Topeka, for appellant.
Joseph Cohen, of Kansas City, for appellee.
This is an action for damages for personal injuries and injuries to an automobile which was struck at a crossing by defendant's interurban car. The jury answered special questions and returned a verdict for plaintiff. Defendant has appealed.
Defendant's interurban electric railway line extends west from Kansas City, Kan. Its right of way at the place in question, about a mile west of the city, is adjacent to a paved highway known as Southwest, or Merriam boulevard. Extending north from this highway, across defendant's tracks, is a private road to a farmhouse, sometimes spoken of as the Turner road. On October 1, 1930, plaintiff, then about sixteen years of age driving an automobile which belonged to his parents, drove to the country to get pears. Two nuns, whose names he did not know, were riding in the back seat. Justin Walleck, a boy about fifteen years of age, was riding in the front seat with him. He drove out Southwest boulevard and stopped at a nursery to inquire the way to the farmhouse. In doing so and returning to the highway he crossed defendant's tracks twice. He turned off the boulevard on the Turner road, proceeded to the farmhouse, obtained the pears, and was driving back to the boulevard. The road was a winding one through some brush and trees, and was a steep incline covered with gravel and rock. He was driving about 10 miles per hour. He could see the trolley wires and the trolley pole of the interurban car. When within about 15 feet of defendant's track, he noticed the trolley pole on the interurban car about 100 to 110 feet west of the crossing. The automobile was equipped with two-wheel brakes, which were in good order. He applied the brakes, but the automobile slid onto the track. He shifted to low gear and tried to get off the tracks but did not have time to do so before he was struck by the interurban car.
Justin Walleck testified that they left the farmhouse and started back, and when about 15 feet from the tracks he saw the top of the trolley pole of the interurban car. At that time plaintiff put on the brakes.
When the automobile was 5 or 10 feet from the track, the interurban car was from 110 to 115 feet away, and, when the automobile went on the track, the interurban car was 85 or 90 feet away. The automobile stopped on the track.
A witness, who had formerly worked for the street car company and operated a car of the type used by defendant, testified that such a car, on practically level track, in dry weather, going at 30 miles an hour, could be stopped in 50 feet. It would take more or less time to act after observing an object, and the 50 feet means from the time the air gets to the brakes until the car stops. That distance would be varied by the particular operating conditions at the time, and the car could not at all times be stopped within 50 feet, even though the track were level. He could not expect a better stop than that.
There was other evidence as to plaintiff's injuries and as to the damages to the car, but, since the amount of the verdict, $500, is not complained of if plaintiff is entitled to recover, this need not be detailed.
Defendant demurred to the evidence. On the hearing of the demurrer, plaintiff abandoned all the allegations of negligence in his petition, except those pertaining to the doctrine of the last clear chance. The court overruled the demurrer. Defendant then introduced its evidence, the court instructed the jury, and the case was submitted, with the result above stated.
By predicating his right to recover solely on the doctrine of the last clear chance, plaintiff necessarily conceded his own negligence in getting on the track in front of defendant's oncoming interurban car. In Jamison v Atchison, T. & S. F. Ry. Co., 122 Kan. 305, 308, 252 P. 472, 473, it was said: ...
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Murphy v. Atchison, T. & S. F. Ry. Co.
... ... jury verdict in favor of the plaintiff on the Kansas theory ... of last clear chance in failing to slacken the speed of the ... M.-K.-T.R ... Co., 347 Mo. 900, 149 S.W.2d 792; Goodman v. K. C., ... M. & S.R. Co., 137 Kan. 508, 21 P.2d 322; Restatement of ... & S.F. Ry. Co., 147 Kan. 192, 75 P.2d 280; ... Goodman v. Kansas City, M. & S.R. Co., 137 Kan. 508, ... 21 P.2d 322; Hall v. St. Louis-S. F ... ...
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