Kirkland v. The Atchison
Decision Date | 08 March 1919 |
Docket Number | 21,970 |
Court | Kansas Supreme Court |
Parties | CLARA KIRKLAND, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant |
Decided January, 1919.
Appeal from Franklin district court; CHARLES A. SMART, judge.
Judgment reversed and cause remanded.
SYLLABUS BY THE COURT.
1. AUTOMOBILE--Crossing Railroad Tracks--Failure to Stop and "Look"--Contributory Negligence. The findings of the jury set out in the opinion disclose the following facts that two laborers riding in an automobile were engaged in a common, or joint, enterprise; that they had joint control of the automobile; that one was instructing the other concerning a route on which milk was to be delivered by the latter; that they attempted to cross a railroad track in front of an approaching passenger train which they saw, or could have seen if they had looked; that each was guilty of contributory negligence; and that the laborer doing the instructing was killed. Held, that his widow cannot recover damages for his death.
2. NEGLIGENCE--Pleading--Charging Contributory Negligence. An answer charging contributory negligence in general terms is sufficient if a motion to make definite and certain has not been filed.
3. SAME--Injuries--Special Questions. The answer to a certain question is attacked on a number of grounds. Held, that the attack cannot be sustained.
4 SAME--Crossing Railroad Track--Contributory Negligence. The widow of a man who is killed in a collision with a railroad train, while attempting to cross the railroad track in front of the approaching train which he saw, or could have seen, if he had looked, cannot recover damages for the death of her husband.
William R. Smith, Owen J. Wood, and Alfred A. Scott, all of Topeka, for the appellant.
Ralph E. Page, of Ottawa, Emmet H. Gamble, F. M. Kennard, and Samuel L. Trusty, all of Kansas City, Mo., for the appellee.
The plaintiff's husband, while riding in an automobile with a man by the name of Plank, was killed in a collision with one of the defendant's trains. The plaintiff sued for the damages sustained by her and recovered judgment for $ 3,000. The defendant appeals. Special findings of fact were made by the jury as follows:
INTERROGATORIES SUBMITTED BY PLAINTIFF.
INTERROGATORIES SUBMITTED BY DEFENDANT.
1. The defendant moved for judgment in its favor on the special findings of the jury. The motion was denied, and judgment was rendered in favor of the plaintiff, on the general verdict, for the amount named. The only question presented by the defendant is that the court erred in denying its motion and in rendering judgment in favor of the plaintiff.
The defendant invokes the rule that, where two persons are engaged in a common enterprise using a conveyance for their purpose, each is responsible for the acts of the other, if they have an equal right of control. (Corley v. Railway Co., 90 Kan. 70, 74, 133 P. 555.) Nothing but the findings of fact is before this court, and the judgment must stand or fall on those findings. It is incumbent on the defendant to show that the plaintiff's husband and Plank had equal control over the automobile. If that is shown, it is shown by the answers to questions numbered eleven and twelve, submitted by the plaintiff, and the answers to questions numbered nine, ten, and twelve, submitted by the defendant. The findings show that the plaintiff's husband and Plank were riding in the automobile when the collision occurred; that the plaintiff's husband was instructing Plank in his work and was acquainting him with the route to be traveled by him in delivering milk for their employer; and that they tried to drive across the railroad track ahead of the approaching train, which they either saw or could have seen if they had looked. The answer to the ninth question submitted by the defendant shows, in substance, that Kirkland was guilty of negligence in not observing the ordinary precautions, although it shows that the defendant was more negligent than Kirkland. The findings necessarily show that the two occupants of the automobile were engaged in a common or joint, enterprise. From the findings it must be deduced that Kirkland had the power of direction as to where the two should go. He must have had equal, if not superior, control over the machine. If he had that control, the plaintiff must fail in this action.
2. The plaintiff contends that the answer did not sufficiently plead contributory negligence. The answer alleged that if Kirkland was injured, it was through...
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