Jones v. Kansas City Public Service Co.

• Decision Date: 08 April 1944
• Docket Number: 36071.
• Citation: 147 P.2d 723,158 Kan. 367
• Parties: JONES et al. v. KANSAS CITY PUBLIC SERVICE CO.
• Court: Kansas Supreme Court

147 P.2d 723

158 Kan. 367

JONES et al. v. KANSAS CITY PUBLIC SERVICE CO.

No. 36071.

Supreme Court of Kansas

April 8, 1944

Syllabus by the Court.

Liability in tort may flow from joint and concurring acts of negligence of two or more persons, but to establish liability of all tort-feasors it must appear that their various acts of negligence combined to product a result and were together the proximate cause of injury.

Ordinarily questions of negligence and of proximate or efficient cause are for jury, but when facts are undisputed court may say whether from facts, viewed most favorably to plaintiff actionable negligence can be inferred.

It is common knowledge that countless children no older than nine years ride street cars unaccompanied by older persons and that many such children ride regularly, going to and from school, or for other purposes.

In action for wrongful death of nine-year-old boy who, after being carried a block past his stop by street car on which he was a passenger and after safely alighting therefrom, started to cross street behind street car and was struck and killed by truck going in opposite direction, petition failed to state cause of action against street car company.

Defendant is not liable for injuries sustained where its negligence is merely a remote cause of the accident.

1. Ordinarily, in an action for damages grounded on negligence the questions of negligence and of "proximate" or efficient cause are for the jury to determine, but when the facts are undisputed it is the province of the court to say whether from the facts, viewed most favorably to the plaintiff, actionable negligence can be inferred.

2. In an action for damages for the wrongful death of a nine year old boy who alighted safely from a street car on which he had been a passenger, and who was thereafter struck and killed by a truck after proceeding back of the street car and while attempting to cross the street, the record is examined and it is held: Under the allegations of the petition as set out in the opinion no cause of action was stated against the street car company.

Appeal from District Court, Wyandotte County, Division No. 4; Russell C. Hardy, Judge.

Action by Ira Jones and Alma Jones against the Kansas City Public Service Company and others to recover for the wrongful death of plaintiffs' nine year old son. From an order sustaining named defendant's demurrer, plaintiffs appeal.

Defendant is not liable for injuries sustained where its negligence is merely a remote cause of the accident.

A. J Herrod, of Kansas City, for appellants.

Charles L. Carr, of Kansas City, Mo., and Edwin S. McAnany and Thos. M. Van Cleave, both of Kansas City, for appellee

HOCH Justice.

This was an action to recover damages for wrongful death. The defendants were a truck driver, his employers, and a street car company. The street car company demurred to the petition on the ground that it did not state a cause of action against it. The demurrer was sustained and from that order the plaintiffs appealed.

Appellants, Ira Jones and Alma Jones, his wife, residents of Kansas City, Kansas, alleged that their son, Billy Wayne Jones, a boy nine years old, was killed as the result of joint and concurring acts of negligence of a truck driver and the motorman on a street car of the appellee, the Kansas City Public Service Company. Briefly, they alleged that Billy and his mother became passengers on one of the company's street cars, in Kansas City, on the afternoon of June 19, 1943; that as the car neared their destination the mother pushed the button for a stop and that the car stopped at the regular stopping place near Southwest Boulevard and 8th Street; that the mother alighted from the rear end of the car but before Billy could alight the doors suddenly closed, preventing his alighting; that the street car proceeded on its way; that notwithstanding another passenger informed the operator of the car that Billy had been prevented from alighting, the car continued about one block farther west to the next intersection; that thereupon the rear doors were opened and Billy alighted, walked around the rear end of the car and while crossing the street was struck by a truck which was coming from the west, and fatally injured.

It is not necessary to narrate the alleged acts of negligence on the part of the truck driver. The alleged acts of negligence by the street car operator were:

"(A) In closing the doors of said street car before Billy Wayne Jones had alighted from said street car.

"(B) In closing the doors of said street car and starting said car after plaintiff, Alma Jones, had alighted therefrom and before Billy Wayne Jones had alighted therefrom, thereby separating Billy Wayne Jones from his mother, depriving her of the opportunity to protect him from danger.

"(C) In permitting Billy Wayne Jones to alight from said street car after the same had been stopped in front of 1600 Southwest Boulevard without affording him aid in reaching a place of safety after alighting from said street car.

"(D) In permitting

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