Seifert v. Schaible

• Decision Date: 11 December 1909
• Docket Number: 16,201
• Citation: 105 P. 529,81 Kan. 323
• Parties: ALFRED SEIFERT, a Minor, etc., Appellee, v. H. F. SCHAIBLE, Appellant
• Court: Kansas Supreme Court

105 P. 529

81 Kan. 323

ALFRED SEIFERT, a Minor, etc., Appellee, v. H. F. SCHAIBLE, Appellant

No. 16,201

Supreme Court of Kansas

December 11, 1909

Decided July, 1909.

Appeal from Wyandotte court of common pleas; LEWIS C. TRUE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PERSONAL INJURIES -- Pedestrian Crossing a Street -- Negligence of Driver of a Team. Pedestrians may rightfully cross streets at places other than the crosswalks at the intersection of streets; and it is the duty of a driver of a team to keep a lookout for pedestrians as well as for vehicles passing along and over the street and exercise reasonable care to avoid a collision with them, and if he fails to do so and by reason thereof a pedestrian is injured the driver or his employer is responsible for the injury.

2. PERSONAL INJURIES -- Pedestrian Crossing a Street -- Negligence of Driver of a Team. Instruction on Degree of Care Children are Required to Exercise. The injured person herein was a boy twelve years of age, and under the testimony it is held, that it was competent for the court to call the attention of the jury to the rule that children of tender age are not held to the same strict accountability in the care of themselves as persons of full age, but are required to exercise such care as persons of their age experience, knowledge and intelligence are ordinarily expected to exercise under like circumstances.

3. WITNESSES -- Cross-examination -- Scope. The scope of the cross-examination of a witness is ordinarily limited to the subject matter of his examination in chief, and a party who desires his testimony as to other facts should make him his own witness.

H. L. Alden, and William Needles, for the appellant.

W. H. McCamish, for the appellee.

OPINION

JOHNSTON, C. J.:

Alfred Seifert, a boy twelve years of age, started across a street of Kansas City, Kan., when the team and wagon of H. F. Schaible was rapidly approaching, and when Seifert had passed the line of travel of the team and had nearly reached the other side of the street the team suddenly turned from its course and went toward Seifert, ran against him and dragged him some distance, bruising him and breaking one of his legs. To recover for the injuries sustained this action was brought by his next friend, in which it was charged that the team was in the control of two boys and was negligently driven against Seifert. The answer denied the averments of negligence and charged that Seifert had failed to exercise due care of himself. The jury found in favor of Seifert, awarding him $ 250 as damages. Schaible complains of rulings made on the testimony and in instructing the jury.

The trial court sustained an objection to a question asked of a witness on cross-examination as to whether another wagon was passing about the time of the collision. Mack, the boy who was driving the Schaible team, was called by Seifert to prove who was in charge of the team and that he was acting for Schaible. The rule limiting cross-examination to the subject matter of the examination in chief justified the exclusion of the testimony. The rejected inquiry was not touched upon in the direct examination. Besides, the question, although of little materiality, was answered by the testimony of other witnesses.

The contention that the demurrer to the plaintiff's evidence was erroneously overruled does not require much attention. There was testimony tending to show negligence in the management of the team. Witnesses stated that the lines were not in the hands of the driver when the team was approaching but were hanging over the end of the seat, while the driver and the...