Maris v. The Lawrence Railway & Light Company

• Citation: 158 P. 6,98 Kan. 205
• Decision Date: 10 June 1916
• Docket Number: 19,717
• Court: United States State Supreme Court of Kansas
• Parties: CLYDE MARIS, a Minor, etc., Appellant, v. THE LAWRENCE RAILWAY & LIGHT COMPANY, Appellee

158 P. 6

98 Kan. 205

CLYDE MARIS, a Minor, etc., Appellant, v. THE LAWRENCE RAILWAY & LIGHT COMPANY, Appellee

No. 19,717

Supreme Court of Kansas

June 10, 1916

Decided, January, 1916.

Appeal from Douglas district court; CHARLES A. SMART, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. EVIDENCE--Conclusion of Witness--Inadmissible. An objection is properly sustained to a question which calls for a mere conclusion of the witness upon one of the ultimate facts which it is the duty of the jury to determine.

2. INJURIES--Collision--Motorcycle and Street Car -- Negligence -- Doctrine of "Last Clear Chance"--No Application. In an action to recover damages for injuries resulting from a collision between a motorcycle upon which plaintiff was riding and a street car of the defendant the doctrine of "the last clear chance" does not apply where the negligence of the defendant is predicated upon the theory that defendant should have discovered the plaintiff's danger in time to have avoided the injury, but did not in fact discover it.

3. NEGLIGENCE--Special Findings--Contradict Finding of Negligence--Verdict Set Aside. Where the special findings showing in detail just what occurred contradict and overturn the finding of negligence, they control, and it is proper in such case to set aside the verdict in plaintiff's favor and render judgment for defendant upon the findings.

O. O. Osborn, of Stockton, and S. N. Hawkes, of Topeka, for the appellant.

Hugh Means, and Raymond F. Rice, both of Lawrence, for the appellee.

OPINION

PORTER, J.

In this action the plaintiff seeks to recover damages for personal injuries resulting from a collision between a motorcycle upon which he was riding and a street car of the defendant. The jury returned a verdict in his favor and answered forty-five special questions. The court set aside the verdict and upon the special findings rendered judgment in defendant's favor for costs, from which the plaintiff appeals.

The plaintiff alleged that at the time of the accident he was driving his motorcycle in a careful and prudent manner and defendant was operating its street car at a reckless and dangerous rate of speed, to wit, twenty-five miles per hour, without ringing the bell or sounding any warning of the approach of the car at the crossing, and without having the car equipped with proper appliances to check its speed, and without having the appliances and brakes properly screened or shielded; also that the brakes and appliances were worn out, defective and worthless, and that these defects and conditions had existed for a long time and could have been known by defendant by reasonable care and diligence. There was, further, an allegation in substance that after the motorman discovered the dangerous position of the plaintiff under the car he negligently failed to stop, and that the car dragged the plaintiff for a distance of about ninety feet.

The facts found by the jury are, in substance, these: The tracks of the defendant run north and south on New Jersey street in the city of Lawrence. Tenth street runs east and west and crosses New Jersey street. The accident occurred at this intersection, about dusk on the evening of May 4, 1912. The plaintiff, who resided three blocks distant was familiar with the situation and experienced in the operation of motorcycles. At the time of the accident he was traveling east on Tenth avenue at a speed of from twenty to twenty-five miles an hour, and he did not reduce his speed until he saw the street car when he was between fifty-five and sixty-five feet from the tracks. The maximum speed at which motorcycles are permitted to run by the ordinances of the city of Lawrence is fifteen miles an hour. The jury found that plaintiff did not approach the crossing at a speed which was reasonable and proper, either with regard to the use and traffic of the intersection or with regard to his own safety; that he did not listen for approaching cars on New Jersey street, that if he had shut off his motor and listened he could have heard the noise of the car and its gong, which was sounded just before the car reached Tenth street. The street car was running about ten miles an hour. An ordinance of the city permitted street cars to run at fifteen miles an hour. The headlight of the street car was lighted at the time. As the car approached the intersection the motorman looked west on Tenth street but did not see the plaintiff for the reason that the plaintiff was not close enough to be seen from the car. After looking to the west the motorman looked east for any vehicles or persons approaching from that direction. There is a much steeper grade to the east of New Jersey street than there is to the west. When first seen by the motorman the plaintiff was twenty-five feet from the car. Immediately on discovering the plaintiff the motorman applied the brakes and made every possible effort to stop the car, which ran from eighty to ninety feet before coming to a stop. The jury found that, under the circumstances, considering the speed of the car and the downward grade of the street, this was a reasonable distance within which to stop the car. It appears that when the plaintiff saw he would not be able to stop his machine he attempted to turn it sharply toward the north and to pass between the curbing at the west side of New Jersey street and the approaching car. He turned his machine to the northeast and stopped it suddenly...