Tempfer v. The Joplin & Pittsburg Railway Company
| Decision Date | 12 April 1913 |
| Docket Number | 18,098 |
| Citation | 89 Kan. 374,131 P. 592 |
| Court | Kansas Supreme Court |
| Parties | JOSEPH TEMPFER, Appellee, v. THE JOPLIN & PITTSBURG RAILWAY COMPANY, Appellant |
Decided January, 1913.
Appeal from Cherokee district court.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. NEGLIGENCE -- Sitting on Railway Track -- Unconscious -- Wantonness of Motorman. One who carelessly sits down upon the ties of an interurban electric railway track to await the arrival of a car is not continuously and concurrently negligent by reason of becoming unconscious from sleep or coma and thereby unable to avoid injury from a car wantonly run upon him.
2. Same. A motorman who sees and realizes the helpless condition and peril of such person in time to stop his car and avoid injuring him, but recklessly runs it upon and over him without attempting to stop until almost upon him, is guilty of wanton negligence, rendering his employer liable for such injury, although he does not run over him willfully and intentionally.
3. CONTRIBUTORY NEGLIGENCE--Concurrent Negligence--Proper Instructions. The company pleaded contributory negligence in sitting down and remaining upon the tracks knowing that a car would soon pass, and the court having instructed correctly as to concurrent negligence and last clear chance, charged that if the deceased was guilty of carelessness continuing down to the time of the negligence of the defendant, if any, which contributed to the injury, there could be no recovery unless the defendant came within the exception to the rule precluding the defense of contributory negligence. Held properly applicable to the defense pleaded.
Andrew H. Skidmore, Stephen L. Walker, both of Columbus, John P. Curran, of Pittsburg, and Edward C. Wright, of Kansas City, Mo., for the appellant.
C. A. McNeill, E. V. McNeill, and Al. F. Williams, all of Columbus, for the appellee;
Charles Stephens, of Columbus, of counsel.
Plaintiff sued to recover damages for the loss of his son who, he alleged, was killed by one of the defendant's cars. The petition averred, in substance, that on August 21, 1910, and for a long time prior thereto, the defendant at a point on its line known as Fleming station kept a rest room or depot for the accommodation of passengers; that shortly before that date the depot was removed, but that the place continued to be used as a stopping place for passengers, where they were received and discharged, and that a large number of passengers constantly congregated there and used such stopping place; that on the day mentioned the son went to the station at this place for the purpose of becoming a passenger; that he had been accustomed to going there and knew that the defendant still stopped its cars at that point; that he arrived there at about 9 o'clock P. M., and finding no place provided to sit down and rest, sat down on the end of one of the ties of the defendant's road, that being the only place to be found at or near the stopping place to rest and wait for one of defendant's cars, and while so waiting he fell asleep and became unconscious of his surroundings or the approach of any car; and about 9:15 o'clock the defendant wantonly, willfully, recklessly and with gross carelessness and negligence, after its motorman who was running the car saw the deceased several hundred feet away and asleep and unconscious and in plenty of time to have stopped the car, ran the same over and killed him. The answer alleged, among other things, that if the plaintiff's son was killed it was on account of his own carelessness, fault and negligence in going upon the tracks and sitting down and remaining there. Testimony was introduced to the effect that the car was loaded and running in the neighborhood of fifteen miles an hour and could have been stopped within 150 to 200 feet, and that the motorman saw the deceased 300 feet or more before running over him. One witness testified that he was a passenger on the car and saw something on the track that looked like a man and told the motorman; that he again arose and told the motorman that it was a man, but that the motorman made no reply and simply turned his head; that the car was 300 or 350 yards from the object when this witness first saw it; that the motorman did not slacken the speed until within ten or fifteen feet of the deceased, who was sitting on the tie close up to the east rail facing east, in a stooping position with his head in his hands. Another witness testified that:
Another witness testified that he was on the car.
Numerous witnesses denied that there was any tall man on the car who thus notified the motorman, and various others gave evidence to the effect that the motorman did all he could to stop the car after discovering that the object on the track was a man. The jury among other things found that the motorman saw the deceased several hundred feet away on the track in a dangerous place, apparently asleep, in time to have stopped the car without injuring him; that had he taken such measures as were in his power at the time he first discovered the object on the track and after he knew and recognized it to be a man who would not leave the track he could have stopped the car before striking him; that the motorman was in no doubt as to the nature of the object on the track when he first discovered it. In answer to a question whether the motorman, as soon as he discovered that it was a man and that he was in peril and would not move, applied the air to the brakes and reversed the motion of the car, they answered "No." Question No. 24 was:
"Did the motorman, Dan Daetwyler, while operating car No. 64, on the night of August 21, 1910, while approaching Louis Tempfer, wantonly, wilfully and intentionally after he knew that such object was a human being, and that it would not leave the track, run his car upon and over him."
To this the jury first answered "Don't know," and on being sent back returned instead the answer "Carelessl...
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