Kern v. The Kansas City

• Decision Date: 10 March 1928
• Docket Number: 27,910
• Citation: 125 Kan. 506,264 P. 1067
• Court: Kansas Supreme Court
• Parties: GEORGE KERN, Appellee, v. THE KANSAS CITY, LEAVENWORTH & WESTERN RAILWAY COMPANY, Appellant

264 P. 1067

125 Kan. 506

GEORGE KERN, Appellee, v. THE KANSAS CITY, LEAVENWORTH & WESTERN RAILWAY COMPANY, Appellant

No. 27,910

Supreme Court of Kansas

March 10, 1928

Decided January, 1928

Appeal from Wyandotte district court, division No. 2; FRANK D HUTCHINGS, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

STREET RAILROADS -- Injury to Party Waiting Near Track -- Contributory Negligence. A person who intends to get on an electric interurban railroad car as a passenger at a place provided for that purpose, who goes to the place, sees a car approaching, and signals it to stop, but stands so close to the track that he is struck by the projecting steps on the car as it passes him is guilty of such contributory negligence as prevents his recovery for the injuries sustained by him.

McCabe Moore, F. H. McKim, both of Kansas City, Robert Stone, James A. McClure, Beryl Johnson, Robert L. Webb, George McDermott, all of Topeka, H. M. Langworthy, Byron Spencer and Frank H. Terrell, all of Kansas City, Mo., for the appellant.

W. W. McCanles, of Kansas City, Mo., for the appellee.

OPINION

MARSHALL, J.:

The plaintiff recovered a judgment in the sum of $ 12,500 for damages sustained by him from being knocked down by an electric interurban railroad car operated by the defendant. The defendant appeals.

The plaintiff's evidence established that the defendant was operating a line of electric railroad from the Soldiers' Home in Leavenworth county to and into the city of Leavenworth; that the plaintiff desired to get on a car going from the Soldiers' Home to the city, and for that purpose went, in the nighttime, to a stopping place on the railroad tracks of the defendant; that he had boarded a car at that place a number of times and was familiar with it; that a paved highway ran along the side of the railroad tracks where the plaintiff was standing; that the paved highway was about three or four feet from the closest rail of the railroad track; that a car approached; that he signaled the car to stop; that he watched the car approaching him; that the car did not stop where the plaintiff stood, but ran past him; and that he then stood so near the railroad track that the step used by passengers to get on the car and extending from the side of the car a distance of approximately one foot, struck him, knocked him down, and injured him.

Special questions were submitted to the jury, which were answered as follows:

"QUESTIONS REQUESTED BY DEFENDANT.

"1. Was plaintiff negligent in getting so close to the track of the defendant railway company that the passing car of the defendant railway company could come in contact with him? A. No.

"2. When plaintiff stood on the right of way of defendant railway company in dangerous proximity to the car of defendant railway company, which came in contact with him, was there anything to prevent him from stepping back a foot or two and be in a place of safety? A. Yes.

"3. If you answer the above question in the affirmative, state what it was. A. Victory highway.

"4. Was plaintiff using ordinary care for his own safety when he was struck by the step of the railway company's car? A. Yes.

"5. What did plaintiff do to prevent his being struck by the step of the car of defendant railway company? A. Signaled car to stop.

"6. When plaintiff came in dangerous proximity to defendant railway company's car, did he exercise ordinary care to extricate himself from such dangerous position? A. Yes.

"7. If you answer the above question in the affirmative, state what he did. A. Remained in place provided by company.

"QUESTIONS REQUESTED BY PLAINTIFF.

"1. How far was plaintiff standing from the street-car tracks at the time he was struck? A. About thirty inches.

"2. Was the plaintiff standing at the usual stopping place for the defendant's street cars? A. Yes.

"3. Was the plaintiff standing at the only place provided by the defendant for passengers to stand while waiting for its northbound street cars? A. Yes.

"4. Was the plaintiff standing as far away from the defendant's streetcar tracks as he could while standing on the place provided by the defendant for its prospective passengers to stand? A. No.

"5. Did the plaintiff believe that he was standing far enough from the street-car tracks to avoid being struck by the street car? A. Yes.

"6. How fast was the street car running as it approached the place where the plaintiff was standing? A. About twenty miles per hour.

"7. Did the motorman sound any gong or signal of warning as he approached the plaintiff? A. No.

"8. How far away was the plaintiff from the street car when the motorman first saw him standing by the track? A. About 125 feet.

"9. In what distance could the motorman have stopped the street car in question by the use of the means and appliances at his command at the time and place in question, in safety to the passengers and the equipment of the street car? A. Seventy-five feet.

"10. Did the plaintiff wave his hand and strike a match to notify the motorman of his presence and for the motorman to stop the street car when the street car was two hundred feet away? A. Yes.

"11. Did the plaintiff think the street car was stopping? A. Yes.

"12. Did the plaintiff think the street car was going to stop? A. Yes."

The defendant demurred to the evidence of the plaintiff; that demurrer was overruled. The defendant requested the court to instruct the jury to return a verdict in favor of the defendant, which request was refused. The defendant filed a motion for judgment on the findings of the jury; that motion was denied. These present but one question, and that is: Can the plaintiff recover damages sustained by him when he saw the car approaching and stood so near the track that in passing it knocked him down and injured him?

The jury in an answer to a specific question found that the plaintiff had not been guilty of negligence, but in answer to other questions found a set of facts which showed that he was guilty of negligence which contributed to his injury.

This court has, on several occasions, decided cases somewhat analogous to the present one.

In Senning v. Interurban Railway Co., 101 Kan. 78, 165 P. 863, this court said:

"In an action against an interurban electric railway company the plaintiff's evidence tended to show these facts: He came to the company's station about dusk with friends who were leaving. After they had boarded the car and before it started he went down into the space between it and the station platform to look for a coin his little daughter had dropped. The...