Lilly v. The Wichita Railroad & Light Company and Isaac W. Hart

• Decision Date: 09 February 1929
• Docket Number: 28,464
• Citation: 274 P. 205,127 Kan. 527
• Court: Kansas Supreme Court
• Parties: C. A. LILLY, Appellant, v. THE WICHITA RAILROAD & LIGHT COMPANY and ISAAC W. HART, Appellees

274 P. 205

127 Kan. 527

C. A. LILLY, Appellant, v. THE WICHITA RAILROAD & LIGHT COMPANY and ISAAC W. HART, Appellees

No. 28,464

Supreme Court of Kansas

February 9, 1929

Decided January, 1929.

Appeal from Sedgwick district court, division No. 3; GROVER PIERPONT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Contributory Negligence--Question of Law or Fact. In an action for damages for personal injuries alleged to have been sustained by reason of the negligence of defendant when the evidence offered on behalf of plaintiff is such that reasonable minds could form but one conclusion on the question of the contributory negligence of plaintiff, that question becomes one of law to be decided by the court, and not one of fact to be determined by the jury.

2. SAME--Contributory Negligence--Evidence. In an action for damages for personal injuries alleged to have been caused by the negligence of defendant, the record is examined and it is held that the evidence introduced on behalf of plaintiff established his contributory negligence.

E. R. Barnes, of Pratt, and Carl H. Davis, of Wichita, for the appellant.

Robert C. Foulston, W. E. Holmes, D. W. Eaton, George Siefkin, Sidney L. Foulston and Lester L. Morris, all of Wichita, for the appellees.

OPINION

HARVEY, J.:

This is an action for damages for personal injuries sustained by plaintiff in a collision with a street car alleged to have been caused by the negligence of defendant. The trial court sustained a demurrer to plaintiff's evidence, and he has appealed.

While other questions are argued, we find it necessary to consider but one, that of plaintiff's contributory negligence. The evidence, so far as it relates to that question, is as follows: Plaintiff, a man well along in years, whose home is at Pratt, was in Wichita the evening of February 5, 1927. He was near 622 East Douglas avenue on the north side of the street and started south across the street on his way to the Union station when he was struck by a street car and seriously injured. Douglas avenue is one of the principal east-and-west streets of Wichita and at the point in question usually has heavy vehicular traffic, and has two street-car tracks, the south track being used for eastbound street cars and the north track for westbound cars. The evidence as to how the casualty occurred is the testimony of plaintiff and three other witnesses. Plaintiff testified in substance that the place he started to cross the street was not a street intersection but was where an alley connected with the street, and that there was some pedestrian traffic across Douglas avenue at this point. It was about eight o'clock in the evening and was dark; and on coming to the place where he started to cross the street he did not stop at the curb, but swung around and started to cross the street; that "there didn't seem to be any traffic, I don't think there was any" on the street; that he walked across the street in a natural gait; that when he got to within two or three feet of the street-car track he looked each way and saw no street car, nor the lights of any car. "I didn't clear exactly stop, but might just about as well. I looked this way and that way, and the way was clear, and I started. . . . I saw nothing." He proceeded across the street and hadn't gone very far when the next thing he knew he was in the hospital.

Harry Smith, a witness called by plaintiff, twenty-two years of age, who lived with his parents and was a plasterer, saw the accident. He was riding on the rear end of a Ford roadster going west. He was facing east. Two other young men were riding on the rear end of the car, as he was. The automobile was making about fifteen miles per hour. There were two parallel street-car tracks there. He saw plaintiff just as he was leaving the curbing on the north side of the street. There was lots of traffic in the street. Plaintiff passed right behind the car in which witness was riding. "He was walking fast until he got about to the south side of our car. There was another car following us, and he jumped to get out from in front of this car." He was about fifteen feet from the street car then. The street car was coming from the west and the witness heard the bell ring twice, and the northeast corner of the street car struck plaintiff. The street car was moving about eighteen miles per hour going east. There was nothing between the witness and the street car. The street car was lighted inside and its headlight was on. There was nothing in the way to prevent plaintiff from seeing the street car after he passed the automobile in which witness was riding. The car in which witness was riding was about thirteen feet north of the south street-car track.

Richard Howell, a witness called by plaintiff, was on the Ford car with Smith, facing east, and saw plaintiff as he stepped off the curb on the north side of the street starting south. He saw the street car, which was traveling about fifteen miles per hour. Plaintiff seemed to be walking at an ordinary gait until he got onto the street-car track and he did not look in either direction, but went straight ahead and walked into the front end of the street car. The street car ran its length and about ten feet more before it...