Nickerson v. Union Traction Co.

• Decision Date: 06 February 1915
• Docket Number: 19216[d1]
• Parties: NICKERSON v. UNION TRACTION CO.
• Court: Kansas Supreme Court

146 P. 366

94 Kan. 172

NICKERSON v. UNION TRACTION CO.

No. 19216^[d1]

Supreme Court of Kansas

February 6, 1915

Syllabus

A contention that a pedestrian, who was run into by a street car, was at the time unconscious, and that due diligence required the motorman to realize that fact and stop the car is supported by evidence that he has no memory of what happened after he left a point a block and a half from where he was hurt, until he found himself in a hospital; that when struck he was not going in the direction to which his errand would lead him; that he walked for some distance in the street close to the track, with his head bent down, giving no heed to the gong, which was sounded loudly and continuously and that shortly before the accident he crossed the track from one side to the other and back again, and was hit while apparently attempting to cross it for a third time.

Appeal from District Court, Montgomery County.

Action by J. D. Nickerson against the Union Traction Company. From judgment for plaintiff, defendant appeals. Affirmed.

Burch and Porter, JJ., dissenting.

John J. Jones, of Chanute, and W. E. Ziegler, of Coffeyville, for appellant.

J. B. Tomlinson and Walter L. McVey, both of Independence, for appellee.

OPINION

MASON, J. J. D.

Nickerson brought an action on account of injuries received through being struck by a street car. A demurrer to his evidence was sus tained, but the court upon further consideration set this ruling aside and granted a new trial. The defendant appeals, contending that the first decision was correct, and the second erroneous.

It is not suggested that the plaintiff was denied a full opportunity to make a case, or that additional or different testimony would be produced at another trial. The question presented is purely one of law: Did the evidence, when given the most favorable consideration, tend to show a right of recovery?

The plaintiff was walking near to and approximately parallel with the track. As the car approached him, the motorman rang the gong vigorously but did not attempt to stop. He stepped upon the track when the car was eight or ten feet away. It is obvious that, if he was in full possession of his faculties he was himself guilty of negligence, and that the motorman was justified in supposing that he would hear and heed the gong and keep away from the track until the car had passed. If the plaintiff is entitled to recover, it must be upon the theory that he was in such a mental condition that he did not realize his situation, and was incapable of being warned, and that the circumstances were such as to apprise the motorman of the fact. Whether the evidence justified these inferences is the question to be determined. There was testimony tending to show these facts: The street upon which the accident occurred runs north and south. The plaintiff was struck by a north-bound car. He left a place east of this street to walk to a place west of it. He reached the east side of the street two blocks and a half south of the point where he was injured. He at once crossed to the west side of the street and then walked a block north. From that time his memory of subsequent events is a blank until he found himself in a hospital. A witness saw him leave the place just indicated--the west side of the street a block and a half south of where he was injured--starting as if to cross the street again, walk ing in a northeasterly direction. This witness, who at the time of the collision was on the west side of the street, about 40 feet away, testified that the plaintiff stepped in front of the car when it was eight or ten feet away, and was struck by its...