Slaton v. Union Electric Ry. Co.

• Decision Date: 01 February 1944
• Docket Number: 35988.
• Citation: Slaton v. Union Electric Ry. Co., 158 Kan. 132, 145 P.2d 456 (Kan. 1944)
• Parties: SLATON v. UNION ELECTRIC RY. CO.
• Court: Kansas Supreme Court

145 P.2d 456

158 Kan. 132

SLATON v. UNION ELECTRIC RY. CO.

No. 35988.

Supreme Court of Kansas

February 1, 1944

Rehearing Denied March 10, 1944.

Syllabus by the Court.

Special finding that by exercise of ordinary diligence defendant's freight car which was being propelled on street railway tracks could have been stopped in time to avoid collision with automobile in which plaintiff was riding was not sustained by evidence and should have been stricken out on defendant's timely motion.

Jury's specific finding of negligence exonerates defendant of any other negligence alleged in the petition.

Evidence showing a groove of three inches deep inside rail of street railway track did not support finding that track was so materially defective as to authorize recovery against either street railway company or municipality for injuries sustained by occupant of automobile which collided with freight car which was being pushed on the tracks when automobile attempted to straddle tracks while passing another automobile and was unable to get off the tracks in time to avoid a collision.

A serious defect in pavement caused by street railway tracks which is likely to cause injury to persons making a reasonable use of street would be a joint liability against city and street railway company alike.

A city is required only to keep its streets reasonably safe for public use, and no harsher rule can justly be imposed on street railway company using the streets for its tracks.

Where petition does not plead facts which would reveal a complete defense at law, defendant may deny generally and await development of plaintiff's evidence which does reveal such complete legal defense, and demur to the evidence.

Where defense of contributory negligence was not pleaded in defendant's answer, it was sufficiently raised by demurrer to plaintiff's evidence when such evidence clearly showed its relevancy.

Specific findings established as matter of law that occupant of automobile who was injured when automobile in which she was riding collided with freight car which was being pushed on street railway tracks was guilty of contributory negligence in failing to see obstruction with which automobile collided precluding recovery for her injuries.

Belated amendments to pleadings are addressed to trial court's discretion.

Refusal to permit plaintiff to amend her petition 3 days after entry of verdict was not an abuse of discretion under circumstances.

Evidence failed to establish negligence of city so as to authorize recovery from city for injuries sustained by occupant of automobile which collided with freight car which was being pushed on street railway tracks when automobile in which occupant was riding attempted to straddle tracks while passing another automobile.

1.In an action for damages sustained by plaintiff in a collision between the automobile in which she was riding and a freight car propelled by an electric motor on defendant's street railway, the issues, the evidence, and the pertinent special findings of the jury, considered and held that the general verdict and judgment for plaintiff cannot be sustained.

2.The jury's finding that by the exercise of ordinary diligence defendant's freight train could have been stopped in time to avoid the collision was not sustained by the evidence and should have been stricken out on a timely motion for defendant.

3.The jury's special finding that the "irregularity of the rail and track bed" constituted the negligence of the defendant railway company was insufficient to support the verdict and judgment, when read in the light of the other pertinent and controlling findings of the jury.

4.Where plaintiff's evidence, with none to the contrary and the jury's pertinent findings show that the collision between the automobile and the defendant's freight car occurred through no fault of defendant, a verdict and judgment for plaintiff must be set aside.

5.Where the defense of contributory negligence was not pleaded in defendant's answer, it was sufficiently raised by a demurrer to plaintiff's evidence when that evidence clearly showed its relevancy,-- following Union Pac. Ry Co. v. Adams,33 Kan. 427, 6 P. 529;andHoudashelt v. State Highway Comm.,137 Kan. 485, 21 P.2d 343.

6.Where the jury's specific findings established plaintiff's contributory negligence, defendant's motion for judgment thereon notwithstanding the general verdict was pertinent and proper and should have been sustained.

7.Error urged by appellee as cross-appellant based upon the overruling of her belated motion to amend her petition considered and not sustained.

8.Error based on the overruling of plaintiff's motion for judgment non obstante against the defendant city considered and not sustained.

Appeal from District Court, Montgomery County; Joseph W. Holdren, Judge.

Action by Jewell Slaton, a minor, by W. L. Slaton, her uncle and next friend, against the Union Electric Railway Company for injuries sustained by minor plaintiff while riding in an automobile which collided with a freight car, wherein the City of Coffeyville was impleaded as defendant.From a judgment in favor of the plaintiff against defendantRailway Company and in favor of the defendantCity of Coffeyville, the defendantRailway Company appeals, and the plaintiff cross-appeals against the defendant city.

SMITH, J., dissenting, and WEDELL and HOCH, JJ., dissenting in part.

Dallas W. Knapp, of Coffeyville, for appellant.

A. R. Lamb, of Coffeyville (Clement A. Reed, of Coffeyville, on the brief), for appellee and cross-appellant.

Aubrey Neale, of Coffeyville, for appelleeCity of Coffeyville.

DAWSON Chief Justice.

This was an action for damages sustained by plaintiff while riding in an automobile which collided with a freight car which was being pushed by an electric locomotive on defendant's street railway in Coffeyville.The city of Coffeyville was impleaded as defendant.

The Union Electric Railway Company has a railway line which runs east and west on Eighth street in Coffeyville.That street is about 30 feet wide and is paved with brick.Buckeye street crosses Eighth street in a suburban part of the city.

On Labor Day, September 8, 1942, plaintiff and two young men, Arthur Cornett and Toby Curtis, spent part of the day riding about town in Cornett's automobile.Curtis did the driving.Late that night another girl, Lucille Blumenstein, joined them.She and Curtis sat in front and Jewell Slaton and Cornett occupied the rear seat.About half an hour after midnight, while these young people were riding westward on Eighth street near its crossing with Buckeye street, Toby Curtis, their driver, undertook to pass another automobile going in the same direction.To do so he veered to the left, astraddle of the street car track.At that time a large freight car was approaching from the west, being pushed by defendant's electric locomotive.Before Toby Curtis got the automobile off the track it collided with the freight car and Jewell Slaton was injured.

Hence this lawsuit.

In her petition Miss Slaton pleaded her version of the accident and her resulting injuries, alleging that the defendant railway company was negligent in the following particulars: "That the brick pavement between the rails of said defendant's track were lower than the rail.That the brick and filler adjacent to the inside of its north rail had been removed and worn away, causing a ditch or depression along the inside of said north rail, so that the tire on the car in which plaintiff was riding could not be driven over said rail with safety, but caught against said rail, thereby causing said collision."

Plaintiff's petition also alleged that defendant failed to have a light on the front end of the freight car as it was being pushed eastward, so that the same could have been seen and warning given in time for the driver of the automobile to get off the street car track.It was alleged that the pavement--

"On the inside of the north rail *** [was] from one to four inches lower than the top of the rail.That said brick did not fit against the north rail, and the filler between the brick and the rail had crumbled and worn away, so that there was a ditch or depression from two to six inches deep and from three to eight inches in width adjacent to the north rail.

*****

"That when the car in which plaintiff was riding was approximately seventy-five (75) feet from the approaching box car *** Toby Curtis turned the steering wheel of said car to the north and attempted to drive said car off the street car track.That the left front tire upon said automobile caught against the north rail and the car slid forward for a distance of approximately thirty (30) feet, at which time it cleared the rail, and the back tire caught on said rail, holding the automobile on the track.That the train *** kept coming from the west, and, without diminishing its speed, struck the car in which plaintiff was riding, thereby crushing and mashing the same, and cutting, mashing and injuring the plaintiff ***."

The petition also charged that defendant failed to have an employe on the front end of the freight car so that such employe could have seen the automobile in which she was riding and signalled defendant's motor man to stop in time to avoid the collision.

Plaintiff also alleged that the defective condition of the street had existed for more than six months and that the city of Coffeyville, and its agents and servants knew or should have known its condition in time to repair it, but that they negligently failed to discover its defective condition, which resulted in her injury and damage.She prayed for $10,000 damages against the street railway company and against the city.

The...