Kansas City-Leavenworth R. Co. v. Langley

• Decision Date: 01 December 1904
• Docket Number: 13,814
• Citation: 78 P. 858,70 Kan. 453
• Parties: THE KANSAS CITY-LEAVENWORTH RAILROAD COMPANY v. WILLIAM LANGLEY
• Court: Kansas Supreme Court

78 P. 858

70 Kan. 453

THE KANSAS CITY-LEAVENWORTH RAILROAD COMPANY v. WILLIAM LANGLEY

No. 13,814

Supreme Court of Kansas

December 1, 1904

Decided July, 1904.

Error from Leavenworth district court; JAMES H. GILLPATRICK, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PRACTICE, SUPREME COURT--Case-made--Order Extending Time. Where the time is extended and a case-made is completed under the provisions of chapter 380, Laws of 1903 it is not invalid because the order of the judge extending the time was not filed with the clerk, the proviso requiring such filing being directory, and not mandatory.

2. PERSONAL INJURIES--Contributory Negligence--Presumption of Reasonable Care of Another. One placed in a position of danger by the negligence of another has a right to presume that such other will take all necessary available means to avoid inflicting injury, and if he may reasonably suppose that no injury will be inflicted upon him by the exercise of such care he cannot be charged with contributory negligence.

3. PERSONAL INJURIES--Contributory Negligence -- Emergency. Where, by the negligent act of another, one is placed in a position of danger which requires immediate and rapid action, without time to deliberate as to the better course to pursue, he is not held to the strict accountability required of one situated under more favorable circumstances. Contributory negligence is not necessarily chargeable to one who fails to exercise the greatest prudence, or the best judgment, in such a case.

4. RAILROADS -- Consolidation -- Assumption of Obligations. By one of the articles of the charter whereby several railroad corporations were consolidated it was provided that such consolidation was "subject to all of the obligations and liabilities to the state which belonged to, or rested upon, any of such corporations making such consolidation." This assumption followed in terms the requirement of the statute. Held, that this was an assumption of the obligations of each of the constituent corporations arising ex contractu or ex delicto.

Atwood & Hooper, for plaintiff in error.

J. C. Petherbridge, and B. F. Endres, for defendant in error.

CUNNINGHAM J. All the justices concurring.

OPINION

CUNNINGHAM, J.:

Defendant in error moves to dismiss this proceeding for the reason that no legal case-made is attached to the petition in error.

It seems that after chapter 380 of the Laws of 1903 took effect an extension of time within which to make and serve a case-made was obtained by the plaintiff in error, but that such order was not filed with the clerk of the district court as provided in that chapter, and it is claimed that the requirement so to file is mandatory, and a failure to do so renders further proceedings in the matter of the settlement and signing of the case-made void and ineffectual. We do not take this view. There is nothing in this act which indicates that the filing of the order is an essential prerequisite to its becoming operative.

Ordinarily the paper on which the order of a court or of a judge at chambers is written need not be deposited in the clerk's office to make it effective. It is well, as a measure of publicity and for its preservation, that it should be, but unless it appear that such disposition is a prerequisite to its becoming effective the requirement that it should be so filed must be held to be directory, and not mandatory. The rule, as stated by this court in Jones v. The State of Kansas, ex rel. Atherby and Kingsbury, 1 Kan. 273, 279, and reiterated in The State v. Yordi , 30 Kan. 221, 223, 2 P. 161, is:

"Unless a fair consideration of the statute shows that the legislature intended compliance with the provision in relation to the manner to be essential to the validity of the proceeding, it is to be regarded as directory merely."

We do not think that it can be fairly said that the provision relative to the filing of the order of extension of time was intended to be essential to the validity of such extension. The proviso in which this requirement is embedded is merely incidental. No duty is imposed upon the party obtaining the extension to file such order. Indeed it does not appear that the order is to come to his hands. It apparently serves no purpose except to give notice to any one interested that the extension has been granted. We can say, at least, that in the absence of any showing of prejudice to the opposite party by the failure to file it, the case-made is not invalidated thereby.

The action was one to recover damages because of a personal injury suffered by the defendant in error from being struck by one of the electric street-cars of plaintiff in error. The defendant in error was driving south with a two-horse team upon one of the streets in Leavenworth. He had a light load, and another man was riding with him. He saw approaching him from the south two heavily loaded three-horse coal wagons. There was not room for him to pass these wagons between the east curb of the street and the railroad company's track on the west. He therefore turned to the west and attempted to cross the track diagonally. At the same time, looking to the north, he observed a street-car standing upon a passing-track, about 175 feet away. His horses crossed the track without accident, but as the hind part of the wagon was crossing one of the horses fell down. On cross-examination Langley testified as follows:

"Ques. Then the situation is this: Your horse had fallen; you looked up and saw a car coming towards you; you noticed enough to know that it was coming in your direction, to form an opinion that it was coming at the rate of from five to eight miles an hour, and that you didn't see any man on the platform, and if he had been there you would have seen him, you think? Now, have I got it right? Ans. I certainly would have seen him if he had been there.

"Q. And yet you stayed right in your wagon to pull that horse up? A. I was so confused and excited over the horse being down and trying to get him up--

"Q. You still stayed in the wagon? A. I did, sir.

"Q. So that you knew if there wasn't any man on that front platform there wasn't anybody at the machinery that controlled the movement of the cars, didn't you? A. Well, I didn't see any one; no, sir.

"Q. You said you didn't see him, and if he had been there you would have seen him--that was your statement? A. I would have seen him if he had been there; yes.

"Q. So that you looked and saw no man, and saw no man at the end of the car where the machinery was that controls the movement of the car? A. No, sir; there was no man there that I could see.

"Q. Then, as you looked back and took that situation in, you saw a car coming with no man in control of it, didn't you? A. At that point?

"Q. At that point just when you looked, after your horse had fallen. A. Yes, sir.

"Q. You turned your back then right on that car that was coming towards you without a man to control it, and began to haul at your horse? Is that a fact? A. I did, sir--paid no further attention to the car.

"Q. How far was the car away at the time you saw it coming towards you without a man in control of it and at the point you were beginning to haul your horse up? A. Something over a block, to the best of my judgment.

"Q. Which is approximately 300 feet? A. Yes, sir.

"Q. And the next you knew was that you were on the pavement? A. When I came to myself I was on the pavement."

On direct examination Langley testified substantially as follows:

"As quick as my horse fell I threw up my hands towards the car and hollered. Then I tried to assist my horse in getting up by bracing my foot against the driver-board of the wagon and holding a very tight rein on the horse. The horse was lunging and making an effort to get up, and of course what I was doing would brace him and help him to get up. . . . Just before I turned to drive across the track I looked up and the car was on the side-track or switch. As I started to cross the track I glanced over my shoulder up the street to look for the car, and saw it on the sidetrack or switch just moving off, which was about one block away, or 300 feet.

"Ques. You noticed there was no motorman on that front car, didn't you? Ans. I did not."

While Langley seems somewhat mixed as to whether there was a motorman in charge of the car, it was shown by the evidence of others, and specially found by the jury, that there was.

The man who was riding in the wagon with Langley testified substantially as follows:

"I was riding in the wagon with Langley at the time he was injured. We were driving down Fifth street, coming to market and just as we got to Ottawa street there was a car standing on the switch at the west side, and another car coming from the west on Ottawa. When we saw the car was going to cut us off from passing down on the west side of Fifth we kept down on the east side of the track for some distance, when we met two three-horse wagons heavily loaded with coal. We could not get by them handy, and we attempted to cross the track to the southwest, and just as we crossed the track one of the horses slipped and fell. I jumped out of the wagon and ran back 75 or 100 feet, throwing up both hands and hollering and motioning for the car to stop. These coal wagons took up pretty nearly the whole of the street on that side. One of them was in the center of the street, and the other kind of cornering across the street, and we saw that we would not make it there, and we had to get out of the way of the car and out of the way of the teams. We aimed to cut across the tracks and come over on the other side of the street, and the horse fell. If the horse had not fallen we would have had ample time to get away. The horse fell just after he crossed over...