The Metropolitan Street Railway Company v. Fawcett

• Decision Date: 09 November 1907
• Docket Number: 15,024
• Parties: THE METROPOLITAN STREET RAILWAY COMPANY v. CHARLES FAWCETT
• Court: Kansas Supreme Court

92 P. 543

76 Kan. 522

THE METROPOLITAN STREET RAILWAY COMPANY v. CHARLES FAWCETT

No. 15,024

Supreme Court of Kansas

November 9, 1907

Decided July, 1907.

Error from Wyandotte court of common pleas; WILLIAM G. HOLT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. STREET-RAILWAYS--Injury to Traveler--Negligent Operation of Cars. In an action brought by the driver of a carriage against a street-car company for personal injuries resulting from the collision of a carriage and a car evidence is pertinent of the management of the car and of the conduct of the driver from the time the horse manifested such fear of the approaching car as should have attracted the attention of the motor-man to the time of the collision.

2. STREET-RAILWAYS--Proximate Cause--Contributory Negligence--Question for the Jury. In such case whether the proximate cause of the collision was the negligence of the motor-man and whether the driver was guilty of contributory negligence were, the evidence as to the circumstances being conflicting, questions for the determination of the jury under proper instructions; and the jury in solving such questions should take into consideration the circumstances shown by the evidence during the time specified in the preceding paragraph.

Miller, Buchan & Miller, and Samuel Maher, for plaintiff in error.

Getty & Hutchings, for defendant in error.

OPINION

SMITH, J.:

The Metropolitan Street Railway Company, defendant below, instituted this proceeding in error to reverse a judgment for $ 900 which Charles Fawcett obtained against it in the court of common pleas of Wyandotte county.

It is first contended that the court erred in overruling the demurrer of the company to the plaintiff's evidence. We have read the evidence, and, considering it, as it was the duty of the court to do, in the light most favorable to the plaintiff, and indulging all reasonable inferences in his favor, we cannot say that the court erred in determining that the plaintiff had by the evidence made out a prima facie case, and hence we cannot say that the court erred in overruling the demurrer. Our view will more fully appear in the discussion of the exceptions to the instructions to the jury.

It is contended that instructions Nos. 3, 4, 5 and 6 are erroneous. The only criticism offered to instruction No. 3 is that there is no reference therein to any negligence of which the plaintiff may have been guilty. The purpose of the instruction was to impress upon the jury what it was essential for the plaintiff to prove--what facts he must establish by the greater weight of the evidence before he was entitled to recover any damages; and the instruction is correct for that purpose. The defendant had alleged contributory negligence on the part of the plaintiff, and the burden of establishing this fact by a preponderance of all the evidence rested upon it, hence the propriety of omitting any reference thereto in enumerating the necessary requisites of plaintiff's proof. The plaintiff, to establish his case, was not required to prove that he was not guilty of contributory negligence.

The plaintiff was driving a horse in a northeasterly direction along the easternmost of two parallel streetcar tracks, and the defendant's street-car that caused the injury was approaching from the opposite direction on the other track. Between the tracks was a space of six or seven feet. The plaintiff testified that when his horse frightened at the approaching car he could have turned to the right off of the car-track into the street. He also said that the surface of the car-track was eight inches above the surface of the street, and that there was standing water and mud along the side of the car-track. Neither he nor any other witness testified that after his horse became frightened he could have turned off there without danger. In the fourth instruction the court told the jury that under the circumstances it...