Ratcliffe v. Speith

• Decision Date: 12 June 1915
• Docket Number: 19,568
• Citation: 149 P. 740,95 Kan. 823
• Parties: JUNE RATCLIFFE, a Minor, etc., Appellant, v. ROBERT SPEITH and WILLIAM SPEITH, Appellees
• Court: Kansas Supreme Court

149 P. 740

95 Kan. 823

JUNE RATCLIFFE, a Minor, etc., Appellant, v. ROBERT SPEITH and WILLIAM SPEITH, Appellees

No. 19,568

Supreme Court of Kansas

June 12, 1915

Decided. January, 1915.

Appeal from Cherokee district court; EDWARD E. SAPP, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. AUTOMOBILES--Duty of Driver on Public Street Where Children Are at Play. Ordinarily it is the duty of a person operating an automobile in a street in which there is a group of children playing not only to bring his automobile under control, but to give warning of approach and to manage his car with reference to the risk that children may not exercise the care for their own protection that adults are expected to exercise.

2. SAME--Ordinary Care of Driver of Automobile--Contributory Negligence--Questions for the Jury. Whether the defendants who were driving an automobile along a street in which a number of children were playing and collided with and injured one of them, and who approached the children without signals or warnings, exercised ordinary care, or whether the plaintiff, who was over thirteen years old and who started across the street without looking for or observing the approach of the automobile, which was coming at a moderate rate of speed, was guilty of contributory negligence, were questions for the determination of a jury.

R. J. W. Bloom, of Columbus, for the appellant.

Edward M. Tracewell, and William J. Moore, both of Columbus, for the appellees.

OPINION

JOHNSTON, C. J.:

This was an action to recover damages for injuries sustained by a girl in a collision with an automobile on a public highway. June Ratcliffe, who was a little over thirteen years of age, and a number of other children were playing on the way home from school as they passed south on High School avenue. A group of the boys were throwing Osage apples at a number of the girls, and while June and some others were running diagonally across the street, looking in the direction from which the apples were being thrown, the defendants, who were coming from the east on Maple street, driving their automobile at a moderate rate of speed, collided with June, who did not observe the approach of the automobile at the intersection of the streets. No signal or warning of their approach was given by the defendants, and as June was looking in another direction she did not observe the automobile nor know that it was in the street until the collision occurred. It appears that there were no obstructions to prevent a view from a point two hundred feet east of the intersection of the streets, the direction from which the automobile was coming, nor from a point one hundred and thirty-four feet north on High School avenue, the direction from which the children were coming. Some effort appears to have been made to swerve the machine from its course so as to avoid the collision, as the front wheel passed the girl without hitting her, but she struck or was struck by the hind wheel or the hinder part of the automobile. Some of the testimony was to the effect that she ran into the car, while she says that the car ran against her. After the plaintiff's testimony was concluded, the court sustained defendants' demurrer to the evidence and gave judgment for the defendants.

The plaintiff, who prosecutes this action by her next friend alleged that the defendants were negligent in failing to give any warning or signal of their approach and in failing to steer the automobile so as to avoid striking her, a child of immature years. The defendants denied that the injury resulted from their negligence, and insisted that the injury was the result of June's contributory negligence. It is a close question whether the injury was the proximate result of the defendants' negligence or of the plaintiff's contributory negligence, but evidently these were questions of fact which should have been submitted to a jury. It is true that the defendants were driving at a moderate rate of speed, but care in this respect was not the full measure of their duty to persons passing along or across the street. It is true, also, that motorists may ordinarily assume that pedestrians or others using the street will exercise ordinary care. They have no right, however, to assume that the way will always be clear and travelers will always be alert to avoid collision. On the other hand, it is their duty to be vigilant and careful to avoid injuring those who are sharing the use of the streets with them. (Williams v. Benson, 87 Kan. 421, 124 P. 531.) It is incumbent on them to be particularly watchful at street crossings, at places where many are boarding or leaving street cars, at places of entertainment where large numbers are coming and going, at public school buildings and in such places where on account of the crowd or confusion or other circumstances people are not likely to observe the approach of automobiles. Especially is it their duty to be alert and watchful near schoolhouses and where there are groups...