The Kansas City-Leavenworth Railroad Company v. Gallagher

• Decision Date: 06 February 1904
• Docket Number: 13,423
• Citation: 68 Kan. 424,75 P. 469
• Parties: THE KANSAS CITY-LEAVENWORTH RAILROAD COMPANY v. MARGARET GALLAGHER
• Court: Kansas Supreme Court

75 P. 469

68 Kan. 424

THE KANSAS CITY-LEAVENWORTH RAILROAD COMPANY v. MARGARET GALLAGHER

No. 13,423

Supreme Court of Kansas

February 6, 1904

Decided January, 1904.

Error from Leavenworth district court; J. H. GILL-PATRICK, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. STREET-RAILWAY--Injury to Pedestrian--Inference of Jury. In the absence of evidence to the contrary, a jury may infer from the universal instinct of self-preservation that a person about to cross an electric street-railway track both looked and listened before venturing to do so.

2. STREET-RAILWAY--Duty of Pedestrian--Held to the Exercise of Reasonable Care--Question for Jury. It is the duty of a pedestrian upon a city street, who is about to cross the track of an electric street-railway company, to exercise his faculties of sight and hearing, and in other respects to take ordinary precautions to avoid collision with the cars. If he does look and listen he will be held to an apprehension of that which should have been seen and heard, and if he fails to look and listen he will be charged with the same liability in case of disaster as if he had done so. But a traveler may cross an electric street-railway track in front of an approaching car which he plainly sees and distinctly hears and not be negligent. If, in view of his distance from the car, the rate of speed of its approach, and all other circumstances of the event, a reasonably prudent man would accept the hazard and undertake to cross, a traveler may do so, and the propriety of his conduct is ordinarily a question for the jury.

Atwood & Hooper, for plaintiff in error.

John T O'Keefe, and Benjamin F. Endres, for defendant in error.

BURCH J. All the Justices concurring.

OPINION

BURCH, J.:

A street-sweeper of a city street, while engaged in the performance of his duties at night, was run down and killed by an electric street-railway car. The car was running at a speed of twenty to twenty-five miles per hour, while the rate allowed by the ordinances of the city was but twelve miles per hour. The track was "sweaty," and because of its slippery condition a moving car was difficult to control. The conductor and motorneer in charge of the car discovered the employee of the city when 100 feet distant from him. He was then upon the track between its rails and in the act of walking across it. The car conductor shouted to him, but the bell was not sounded or other warning given. Two railway engines were standing a short distance beyond the place of accident, one of which was taking water and the other noisily emitting steam, while the wind blew from the direction of the engines toward the pedestrian and the car. When the man was observed the motorneer set the brakes, which locked the car wheels, but not so quickly as if the brakes had been in good repair. The proper method of overcoming the momentum of the car would have been to apply sand to the track, but the apparatus for the use of sand was out of repair and that expedient was not adopted at all. The car was properly lighted, and some street lights were burning in the vicinity, and if it had been properly equipped, operated and controlled the car could have been stopped within a distance less than that intervening between the man and the car when he was discovered to be on the track.

The deceased was struck by the corner of the car on the side of the track toward which he was walking, and by force of the collision his body was thrown still farther away from the track. He was in good health and had good eyesight and good hearing. He was familiar with the track and the manner and mode of running cars upon it along the street in question, and knew about how often cars passed the place of injury. He had an unobstructed view of the track for 610 feet in the direction from which the car came. There was nothing to prevent his seeing the car as it approached him if he had looked, and if he had heard or heeded the shouting of the conductor he then had time to leave the track and avoid the collision, and had the ability to do so. But there is nothing to show either that he did or did not look for an approaching car, or that he did or did not see or hear the one which struck him. Under these circumstances, was the deceased guilty of such contributory negligence that his widow may not recover from the company operating the car the damages occasioned by his death?

The defendant company argues the case as if the deceased man either looked and listened for an approaching car, or did not do so; that he was negligent if he failed to take so much precaution for his own welfare; that he must be held to have noted the proximity of the car, if he did look and listen, and that a reasonably prudent man, after looking and listening, would have avoided a collision. It is true that a traveler upon a city street, who is about to cross the track of an electric street-railway company, should exercise his faculties of sight and hearing, and in other respects take ordinary precautions to avoid collision with the cars. If he does look and listen he will be held to an apprehension of that which should have been seen and heard; and if he fails to look and listen he will be charged with the same liability in case of disaster as if he had done so. These principles meet the tests both of reason and of practical application to the affairs of men. (Burns v. Railway Co., 66 Kan. 188, 71 P. 244.)

But a jury may infer ordinary care and diligence on the part of an injured person from the love of life, the instinct of self-preservation, and the known disposition of men to avoid injury. (Dewald v. K. C. Ft. S. & G. Rld. Co., 44 Kan. 586, 24 P. 1101.) And in the absence of evidence to the contrary, it will be presumed that a person about to cross a railroad track both looked and listened before venturing to do so. (C. R. I. & P. Rly. Co. v. Hinds, 56 Kan. 758, 44 P. 993.)

"There was no error in instructing the jury that in the absence of evidence to the contrary, there was a presumption that the deceased stopped, looked and listened. The law was so declared in Texas & Pacific Railway Co. v Gentry, 163 U.S. 353, 366, 16 S.Ct. 1104, 41 L.Ed. 186, 192, The case was a natural extension of prior cases. The presumption is founded on a law of nature. We know of no more universal instinct than that of self-preservation--none that so insistently urges to care against injury. It has its motives to exercise in the fear of pain, maiming, and death. There are few presumptions, based on human feelings or experience, that have surer foundation than that expressed in the instruction objected to." ( Baltimore & Potomac R. R. v....