Senning v. The Arkansas Valley Interurban Railway Company

• Decision Date: 09 June 1917
• Docket Number: 20,768
• Parties: GEORGE SENNING, Appellant, v. THE ARKANSAS VALLEY INTERURBAN RAILWAY COMPANY, Appellee
• Court: Kansas Supreme Court

165 P. 863

101 Kan. 78

GEORGE SENNING, Appellant, v. THE ARKANSAS VALLEY INTERURBAN RAILWAY COMPANY, Appellee

No. 20,768

Supreme Court of Kansas

June 9, 1917

Decided January, 1917.

Appeal from Sedgwick district court, division No. 1; THOMAS C WILSON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

INTERURBAN RAILWAY--Personal Injuries--Duty Owed to Licensee by Railway Company--Wanton Negligence. In an action against an interurban electric railway company the plaintiff's evidence tended to show these facts: He came to the company's station about dusk with friends who were leaving. After they had boarded the car and before it started he went down into the space between it and the station platform to look for a coin his little daughter had dropped. The platform was about two feet above the ground and five feet from the track. Passengers were received and discharged by a gangplank laid to the rear steps. As the defendant was stooping over, facing away from the car, it started without any signal being given, and as the front wheels turned in the other direction on a curve the rear step protruded and struck him. Held,

1. In the aspect most favorable to the plaintiff, he was but a licensee while in the place between the platform and the track, and the company owed him no duty to give him warning of the starting of the car.

2. If such a duty had been owing to him the omission to perform it would have constituted mere negligence and not wanton misconduct.

3. In that case his own failure to use reasonable care for his safety would bar a recovery.

Earl Blake, W. A. Ayres, and C. A. McCorkle, all of Wichita, for the appellant.

Chester I. Long, and Austin M. Cowan, both of Wichita, for the appellee.

OPINION

MASON, J.:

George Senning, while standing beside the track of the Arkansas Valley Interurban Railway Company, was struck by the rear step of a car as it swung around a curve. He brought an action against the company on account of the injury received. A demurrer to his evidence was sustained, and he appeals.

The accident took place just as the car was leaving the station at Wichita. The platform used by passengers is about fifteen feet wide and two feet high, and is a little longer than one of the cars. The track is about five feet east of the platform, paralleling it for its full length, but a curve to the east begins about opposite its south end. Passengers are received and discharged by means of a gangplank placed from the platform (near the north end) to the rear step of the car.

The plaintiff had gone to the station with friends, who were leaving by the seven o'clock car on the evening of October 14. When the party reached the station the car was already there. The plaintiff accompanied his friends to the gangplank, and after they had crossed it he walked south along the platform about two-thirds of the length of the car, to where his wife and little daughter were standing. He passed them, and stopped for five or ten minutes talking with an acquaintance. His daughter then came to him and told him she had dropped a coin to the ground below the platform. He undertook to find it. He descended the steps at the south end of the platform, which brought him upon the sidewalk of the street, which runs east and west. He then walked north between the car and the platform about a third of the length of the car and lit several matches, looking for the coin. While he was stooping over, facing to the west, the car started, moving to the south. As the front wheels turned to the east on the curve the rear steps protruded to the west and struck the plaintiff over the right kidney, causing the injury of which he complains. As the car stood upon the straight track the overhang was about a third of the distance from the rail to the platform. The curve caused the rear steps to protrude, at the point where the plaintiff was struck, to about half the distance. The nearest the steps were brought to the platform by the swing at any point was about two feet.

The negligence relied upon is the starting of the car without signal or warning. The defendant maintains that it owed no duty to the plaintiff in this regard, and that in any event his recovery is precluded by his own conduct.

1. The failure of the defendant's employees to give a signal before starting the car can not be a basis of liability to the plaintiff unless the omitted duty...