Lewark v. Parkinson

• Decision Date: 12 May 1906
• Docket Number: 14,404
• Citation: 85 P. 601,73 Kan. 553
• Parties: W. H. LEWARK et al., as Partners, etc., v. SOPHIA PARKINSON
• Court: Kansas Supreme Court

85 P. 601

73 Kan. 553

W. H. LEWARK et al., as Partners, etc., v. SOPHIA PARKINSON

No. 14,404

Supreme Court of Kansas

May 12, 1906

Decided January, 1906.

Error from Montgomery district court; THOMAS J. FLANNELLY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. COMMON CARRIERS--Owners of Hacks--Injury to Passenger. Proprietors of hacks and cabs carrying passengers for hire are liable for all injuries caused by their failure to provide suitable vehicles, safe horses and harness, and a competent, careful driver.

2. COMMON CARRIERS--Unsafe Horses -- Defective Harness -- Emergency -- Time for Deliberation. When the proprietors of a line of hacks and cabs engaged in carrying passengers for hire are sued for damages for injuries sustained by a passenger in a runaway caused by the team's becoming frightened and the harness breaking, an instruction is properly refused which charges that carriers are not liable for a mistaken exercise of judgment on the part of their servants in an emergency, nor for a failure of such servants to act with the utmost promptitude when the circumstances are such as to afford no time for deliberation.

3. DAMAGES--Personal Injuries--Expenses. Expenses incurred by an injured passenger, which resulted from the injuries, including compensation for services of nurses, are proper elements of damages in an action against the carrier in such a case, notwithstanding the services were performed by a member of the family of the injured person, if the services were necessary and the charges reasonable.

J. H. Keith, and Charles Bucher, for plaintiffs in error.

Benson & Harris, for defendant in error.

PORTER J. All the Justices concurring.

OPINION

PORTER, J.

Plaintiffs in error are proprietors of a line of hacks and cabs operating at Coffeyville as common carriers of passengers and baggage between railway depots and elsewhere in the city. On the 7th day of March, 1902, Mrs. Parkinson, defendant in error, who was seventy-two years of age, was a passenger in one of the cabs, on her way from one depot to another, and was injured in a runaway. She brought this action to recover damages for the injuries sustained. The jury returned a verdict in her favor for $ 400, of which they allowed $ 150 for expenses incurred by reason of the injuries, and the remainder for pain and suffering. Plaintiffs in error seek to reverse the judgment, and assign numerous errors.

Defendant in error at the time of the accident was traveling from her home at Pomona, in Franklin county, to visit her sons, who lived at Wagoner, in the Indian Territory. It was claimed in her petition, and established by the evidence, that she was the only passenger in the cab when the team started to run, and that she looked out and saw that the driver had dropped or in some way lost the lines. She says that he jumped from his seat and ran to the door of the cab, which was at the rear, and opened the door and held his hand to assist her in getting out; that while attempting to get out she was thrown down and received the injuries complained of. The answer set up contributory negligence. Upon the trial the driver testified that the horses became frightened at a large piece of paper which the wind carried into the street in front of them; that one of the tugs broke, and then one of the lines broke, and he jumped off. He denied that he opened the door for defendant in error, or that he did anything to induce her to get out, but claimed that he was endeavoring to prevent her from doing so.

The injuries to Mrs. Parkinson were serious enough to prevent her from continuing her journey. She was carried into a private residence near by and cared for by strangers. Her sons came at once from Wagoner, and, while one remained to care for her, the other went back to Wagoner, returning the next day with his family physician, who took charge of defendant in error. The court admitted evidence of the expense incurred by the sons in these trips, and in taking their mother from Coffeyville to Wagoner, where she remained several weeks, and also of the expense of one of the sons in taking her later to her own home. These expenses and the time of the sons in nursing and caring for defendant in error were allowed by the jury as a part of the expenses incurred. It is seriously contended that as the sons were in duty bound to care for their mother, and because it appeared from the evidence that the wages of one of the sons, who was employed as a clerk in a store, were paid him by his employer during the time he claimed to have cared for his mother, it was error for the jury to allow defendant in error for these items of expense.

If defendants below are liable at all they are liable for the necessary expense caused by the injury to the passenger including traveling expenses made necessary by the circumstances in which defendant in error was left by the accident. It became necessary for her sons to...