Smith v. The City Ice and Delivery Company

• Decision Date: 10 January 1925
• Docket Number: 25,604
• Citation: 117 Kan. 485,232 P. 603
• Parties: THRESA SMITH, Appellee, v. THE CITY ICE AND DELIVERY COMPANY, Appellant
• Court: Kansas Supreme Court

232 P. 603

117 Kan. 485

THRESA SMITH, Appellee, v. THE CITY ICE AND DELIVERY COMPANY, Appellant

No. 25,604

Supreme Court of Kansas

January 10, 1925

Decided January, 1925

Appeal from Sedgwick district court, division No. 3; JESSE D. WALL judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Untied Team Negligently Left on Street--Deceased Killed While Attempting to Stop Runaway Team--No Contributory Negligence Shown. In an action for the death of the plaintiff's husband while attempting to stop a runaway team of the defendant which had been negligently left untied, the evidence is held to justify a finding that there was at the time such imminent danger to human life or limb from the runaways as to free the decedent from the charge of contributory negligence.

2. SAME--Assignments of Error Do Not Require a Reversal. Various rulings which are complained of are held not to require a reversal.

C. G. Yankey, W. E. Holmes, D. W. Eaton, and John L. Gleason, all of Wichita, for the appellant.

John W. Adams, William J. Wertz, and George L. Adams, all of Wichita, for the appellee.

OPINION

MASON, J.:

A little before noon a team of mules attached to an ice wagon of the City Ice and Delivery Company of Wichita were left in the street untied while the driver went into a restaurant for lunch. They ran away, and John Smith received fatal injuries in an attempt to stop them. His widow brought this action against the company, recovering a judgment for $ 10,000, from which it appeals.

1. The law treats the voluntary risking of one's own life as negligence per se if the purpose is merely to protect property, but not if it is to save human life. Here a reversal is asked principally upon the contention that the decedent was conclusively shown to have been guilty of contributory negligence, inasmuch as there was no evidence tending to show that any person was placed in peril by the runaways at the time the decedent attempted to stop them; that although they had entered a street intersection while a number of school children on their way home were on the further corners, they turned into the cross street and passed the children before the decedent's attempt to stop them, and that neither these children nor any one else was in danger at that time.

The defendant relies largely upon Devine v. Pfaelzer, 277 Ill. 255, 115 N.E. 126, annotated in L. R. A. 1917 C 1080. There one who lost his life in an attempt to stop a runaway horse drawing a buggy was held guilty of contributory negligence as a matter of law because the occurrence took place in a residence district, on a street which no one testified was a busy one, there being no testimony, nor any circumstance that might raise an inference, that there was anyone in the roadway or that any person was in the slightest danger from the horse, and no evidence from which it could be presumed what was in the mind of the person killed or that he had any occasion to believe anyone to be in danger. Even in that situation two justices dissented. The court said, however, that to defeat a plea of contributory negligence by showing an act to have been done to preserve life "it is not essential . . . that the effort should be to save the life of some particular and definite person" (p. 260), citing Halloran v. City of New York, 153 N.Y.S. 447, which it referred to as a case "where a team of horses was running away, dragging a street sweeper, in what the court called in one place a busy street and in another a measurably busy street, although the danger was not at the moment imminent to a definite person," and which it distinguished by saying: "St. Lawrence avenue was a residence street, and bore no resemblance to the busy street in Brooklyn where the team was running away with the street sweeper." (p. 261.)

Here there was evidence tending to show these facts: The street (Waterman) on which the runaway began is parallel to and four blocks south of Douglas avenue, the principal street of the city. After the mules had run west nearly two blocks they turned north into South Topeka avenue and were stopped near the next crossing, of which a witness said, "There are cars and people passing every minute, that corner." In the first block of the street into which the mules turned all the houses except one--an automobile agency--were residences. In the two blocks north of that there were business houses. "There was quite a bit of traffic on Topeka avenue . . . south to Waterman street about the noon hour." "There was lots of people on the street at the time these mules was running there. . . . There were people in all directions." There were cars parked along South Topeka avenue north of Waterman street. "The street was just lined through there with cars parked along the curb." "There were cars parked in the street, but they were not parked so much on one side as the other, or this wagon could not have gotten down this side of the street without hitting cars." The ice wagon swung from one side to the other. "One mule would pull on the chain and swing the wagon that way, and the other mule's chain would tighten and jerk it back and keep whipping it back and forth." When the mules turned north "there were cars on Topeka avenue and a few people walking along." There were automobiles with people in them coming south on that street less than a block away. Asked, "Did you see people up along Topeka avenue afoot--pedestrians on the street?" a witness answered, "I did; yes, sir."

The difference between the Devine-Pfaelzer case and this upon the vital matter of the amount of traffic at the place of the accident is too obvious to require comment. Here the jury could have had no difficulty in saying that the street was not only "measurably" busy but quite busy, or busy without any qualifying adjective. The evidence already referred to was sufficient to take the case to the jury, even if the fact of a number of school children having been at the west corners of the intersection of Waterman and South Topeka were to be wholly ignored. The driver of the mules fixed the time of the runaway at twenty minutes before noon. The principal of a school a block south and a block west of the intersection referred to testified that the first grade of the primary department, consisting of about seventy pupils of an average age of seven or eight years, were dismissed at 11:30. The decedent at the time the mules started to run was in a motor truck going south on the first street east of South Topeka avenue, about to enter the intersection with Waterman street. There was evidence to this effect: The mules passed in front of...