Honick v. The Metropolitan Street-Railway Company

• Decision Date: 10 January 1903
• Docket Number: 12,868
• Citation: 71 P. 265,66 Kan. 124
• Parties: CHARLES HONICK v. THE METROPOLITAN STREET-RAILWAY COMPANY
• Court: Kansas Supreme Court

71 P. 265

66 Kan. 124

CHARLES HONICK v. THE METROPOLITAN STREET-RAILWAY COMPANY

No. 12,868

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. PRACTICE, DISTRICT COURT--Instructions. The trial court should fairly, fully and specifically state to the jury all issues of fact made by the pleadings and evidence. However, an issue made by the pleadings but not supported by the evidence should not be submitted to the jury by instructions.

2. PRACTICE, DISTRICT COURT--Personal Injuries--Instructions. In an action to recover damages for personal injuries the trial court should not particularize acts and inform the jury that a non-performance thereof by the plaintiff would defeat a recovery. It is better and more in harmony with our system of practice to instruct the jury generally in the law of negligence applicable to the facts. Held, however, that no error was committed in this case by the instruction given.

Sutton Maher & Sutton, for plaintiff in error.

Miller, Buchan & Morris, for defendant in error.

GREENE J. All the Justices concurring.

OPINION

GREENE, J.:

Charles Honick was defeated in the court below in an action to recover damages from defendant in error for alleged injuries sustained by being struck by one of the latter's street-cars at the crossing of Seventh street and Virginia avenue in the city of Kansas City, Kan. The negligent acts charged in the petition were the running of the cars over the crossing at a reckless and dangerous rate of speed; the running of one car after another in less than the usual schedule; the failure to stop the car which struck plaintiff's buggy or to check its speed when it was, or should have been, apparent to the motorman that plaintiff was not aware of the approach of the car; and the failure to maintain a flagman at the crossing while running cars at shorter intervals than usual and at an unusual rate of speed.

The first error complained of is that the court excluded the evidence of A. W. DeLong, both in chief and upon rebuttal, as to the required distance within which to stop one of defendant's cars, on the line in question, with the appliances in use at the time of the accident. Objection was made and sustained that the witness was incompetent, not being familiar with the appliances in use on the line at the time of the accident. We think this objection was properly sustained.

The defendant afterward offered evidence showing that the appliances used at the time of the accident were those in use when the witness DeLong worked on the line. It also offered evidence tending to show the required distance within which to stop its cars. The plaintiff, upon rebuttal, recalled DeLong and repeated in substance the former questions. To this the defendant objected and the objection was sustained. We think this evidence should have been admitted. It was proper and material in rebuttal of the defense that the motorman could not have stopped the car in time to avoid the collision, but we do not find in the record that any exceptions were saved by the plaintiff to the ruling of the court sustaining the objection.

It is also claimed that the court erred in refusing to permit the plaintiff to testify to the speed of the car which struck him at the crossing. The plaintiff has no ground to complain of this. He testified that he did not see the car until his attention was called to it by his daughter, who was in the buggy with him, and at a time when his horse was across the track and the buggy on the track and the car within ten feet of the buggy. We think he could not, therefore, have approximated the speed of the car. The discovery of the car by plaintiff and the collision were instantaneous.

Complaint is made of the following instruction given by the court:

"The plaintiff claims . . . that the collision . . . was caused by negligence on the part of defendant, in not stopping said car . . . or checking its speed when it was, or should have been, apparent to the motorman in charge thereof that the plaintiff was not aware of the approach of said car and was proceeding to cross said tracks."

In this connection complaint is also made of the refusal to give an instruction prepared and requested by the plaintiff, which set out the acts of negligence stated in the petition. It is contended that the court erred in giving this instruction and in refusing the one requested; that the one given was not a fair and truthful statement of plaintiff's claim embodying all the acts of negligence relied...