Marple v. The Topeka Railway Company
| Decision Date | 11 November 1911 |
| Docket Number | 17,133 |
| Citation | 118 P. 690,85 Kan. 699 |
| Parties | STELLA B. MARPLE, Appellee, v. THE TOPEKA RAILWAY COMPANY, Appellant |
| Court | Kansas Supreme Court |
Decided July, 1911.
Appeal from Shawnee district court. Opinion filed June 10, 1911. Affirmed. Opinion on rehearing, filed November 11, 1911. Reversed.
STATEMENT.
THIS is an action to recover damages for the death of the plaintiff's husband caused by the alleged negligence of the defendant.
Marple was walking east on the north side of Laurent street in Topeka. About the time he reached the curb on the west side of Kansas avenue an electric street car approached the crossing of Laurent street running south on the avenue. Marple continued to walk eastwardly, angling slightly to the north, and passing behind the car, over the west track proceeded to the west rail of the east track, where he was struck by a north-bound car on that track and thrown a distance of about thirty feet, sustaining injuries causing his death. The motorman first saw Marple about fifteen feet from the car, which he reversed, but too late to avoid the injury, stopping it at a point 175 to 200 feet beyond the place of collision. The avenue is about forty feet wide at that place from curb to curb, and the railway tracks are equidistant from the curb on either side. The rails in each track are five feet apart, and there is a space of six feet between the east rail of the west track and the west rail of the east track. At the intersection of the west line of the avenue with Laurent street the railway tracks to the southward can ordinarily be seen for one or more blocks, but Marple's view was obstructed by the south-bound car after it passed him. There was nothing to prevent him from seeing the north-bound car for one or more blocks to the south while he was crossing the space between the tracks.
The accident occurred at about 6:30 A. M. The place was one of important business activity and many people appear to have been near by. There was considerable testimony that the bell or gong was not sounded and there was evidence that it was out of order or could not be used. The motorman testified that he could not sound it after seeing the deceased because he had to stand on both feet to manipulate the car. He testified that while his car was farther south his attention was directed to a huckster's wagon near the track, but his failure to see the deceased until close upon him, or within fifteen feet, was not explained. Several witnesses testified that the car was going very fast. The witnesses used the terms "high speed," "extra high speed," going at a high speed and jumped right into him,": "an unusual high rate of speed such as to attract my attention," and "going awful fast." People who were in or about near-by places of business testified that the impact sounded like striking a horse, and one said like striking a wagon. Evidence was given that the car might have been stopped within fifty or sixty feet if running at twelve miles an hour, which is the limit allowed by a city ordinance. The jury made no special findings of the particular rate of speed. Several persons saw the deceased as he crossed the street and was injured, and testified that he appeared to be looking in front with his head slightly bowed but no one was in a position to see, nor did any one testify that he did not glance or look to the southward, only that they did not see him look or turn his head in that direction. The motorman testified that he shouted to Marple when he saw him fifteen feet from the car, but that he kept right on taking long strides.
The verdict was for the plaintiff. The defendant appeals.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. NEGLIGENCE -- Contributory Negligence -- Street Railway Crossing. A pedestrian upon a sidewalk in a city is not as a matter of law chargeable with negligence in crossing the tracks of a street railway upon which a car is approaching, provided the car is so far away and its apparent speed is such that a person of reasonable prudence would do so in that situation.
2. NEGLIGENCE -- Same. It can not be held as matter of law that it is negligent to pass over a public crossing in a street where cars usually stop, in front of an approaching street car, unless its proximity, its speed as it appears to the pedestrian, the signals, if any, and other circumstances, are such that no other reasonable conclusion can be drawn.
3. NEGLIGENCE -- Contributory Negligence--Question of Fact. It is held that upon the evidence the question of contributory negligence was properly submitted to the jury.
Leonard S. Ferry, Thomas F. Doran, J. S. Dean, and Charles A. Magaw, for the appellant.
Edwin D. McKeever, for the appellee.
The contention of the defendant is that the plaintiff is barred from a recovery by the contributory negligence of the deceased. This claim was presented in a demurrer to the evidence, in requests for instructions, and otherwise. The argument is that if the deceased looked he must have seen the approaching car in time to have averted injury, and was negligent because he did not stop, and that if he failed to look he was equally negligent. (Young v. Railway Co., 57 Kan. 144, 45 P. 583.) If it clearly appears that he was thus negligent the verdict can not be sustained; if it does not so clearly appear, the question was for the jury. The deceased may have seen the car when he stepped over the curb, and before the south-bound car obstructed his view, but whether he did depends upon his vigilance, the distance from him to the car, and on the rate of speed with which it was running. Conceding, however, that he did at that time see, or might have seen it, he was not absolutely bound to stop there. He might properly go on to a point near the track, in any event,...
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