The Consolidated City & Chelsea Park Railway Company v. Carlson

• Citation: 58 Kan. 62,48 P. 635
• Decision Date: 10 April 1897
• Docket Number: 9579
• Court: United States State Supreme Court of Kansas
• Parties: THE CONSOLIDATED CITY & CHELSEA PARK RAILWAY COMPANY v. JOHN CARLSON, Administrator

48 P. 635

58 Kan. 62

THE CONSOLIDATED CITY & CHELSEA PARK RAILWAY COMPANY v. JOHN CARLSON, Administrator

No. 9579

Supreme Court of Kansas

April 10, 1897

Decided January, 1897.

Error from Wyandotte District Court. Hon. Henry L. Alden, Judge.

Judgment affirmed.

Miller & Morris and Pratt, Dana & Black, for plaintiff in error.

McGrew Watson & Watson, for defendant in error.

OPINION

ALLEN, J.

I. This action was brought by John Carlson, as administrator of the estate of Victor Carlson, deceased, against the Consolidated City & Chelsea Park Railway Company, a corporation operating a street railway in Kansas City, Kansas, to recover damages for negligently causing the death of Victor Carlson. The trial resulted in a verdict and judgment for the plaintiff for $ 4,134. The place where the injury was inflicted was at the intersection of Shawnee and Fifth Streets. The defendant's road was operated by electricity. The car which struck Victor Carlson was passing east on the south track of the line of road on Shawnee Street, which runs east and west. There was a large public-school building on the south side of Shawnee and west side of Fifth Street, which Victor Carlson, a boy lacking one day of being ten years of age, was attending. Soon after the close of school on the fifth of February, 1892, as the children were crossing the streets, going in various directions, a car on the defendant's road, going at the rate of ten or twelve miles an hour, struck this boy, and so injured him that he died in a few hours thereafter. At the conclusion of the plaintiff's testimony, a demurrer thereto was interposed by the defendant.

It is now argued that there was no proof of culpable negligence on the part of the defendant, and that the deceased negligently caused his own death by attempting to cross the track immediately in front of the moving car. It is urged that the boy went suddenly upon the track as the car was approaching that the motorneer had no reason to anticipate that he would do so; that there is no proof that the speed at which the car was moving was unlawful, and that the injury resulted solely from the carelessness of the deceased. In answer to a special question, the jury found that the defendant was guilty of gross negligence. There is evidence in the record supporting this finding. The operation of cars on a street railway must be with reference to other lawful uses that are made of the street. The children had a right to leave the school building and, in going to their homes, cross the street on which the car tracks were located. It appears that a large number of children were in the street at the time this car came along. While most of them were not standing on the track for any length of time, they were crossing and re-crossing; some of them playing; and one girl in particular was standing on one of the rails at about the time this boy was struck. A motorneer in charge of a street car may not lawfully propel it into a crowd of children, or of grown people either, at such rate of speed as to seriously endanger persons on or about the track. It would be difficult to conceive a more reckless act than that of driving a street car at the rate of twelve miles an hour into a swarm of school children just as they are leaving school. This would be so even if the bell were continuously sounded. In this case, it appears that the bell was rung at the alley, about 150 feet away from the boy, but several of the children, who were near him, testified that they did not hear it. There is also testimony tending to show that the motorneer was not keeping watch of the track in front of him, but that his attention appeared to be directed to one side. All these circumstances taken together, were ample to warrant the jury in finding that he was guilty of gross negligence amounting to wantonness.

II. There was evidence tending to show some negligence on the part of the boy. It is probable that had he watched for cars he might have seen this one. But we are not prepared to say, as a matter of law, that, when in a crowd, playing with other children in a manner quite natural after the day's confinement in a school room, he was bound to watch for a car driven as recklessly as this one appears to have been. He had a right to rely on the exercise of some degree of care in the operation of cars on the tracks; and the court properly submitted to the jury the question whether, under the circumstances, he was guilty of culpable negligence. The special findings of fact are not inconsistent with the general verdict, but, so far as they go, uphold it.

III. Complaint is made of various instructions. In the third, the jury were told, among other things, that they might consider "the speed at which the car was running at the time what the person in charge of the car was engaged in doing at the time; the age and discretion of the parties, and all other facts disclosed by the...