The Metropolitan Street-Railway Company v. Ryan

• Decision Date: 11 June 1904
• Docket Number: 13,689
• Citation: 77 P. 267,69 Kan. 538
• Parties: THE METROPOLITAN STREET-RAILWAY COMPANY v. FRANCES RYAN
• Court: Kansas Supreme Court

77 P. 267

69 Kan. 538

THE METROPOLITAN STREET-RAILWAY COMPANY v. FRANCES RYAN

No. 13,689

Supreme Court of Kansas

June 11, 1904

Decided January, 1904.

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

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

STREET RAILWAY -- Injury to Passenger -- Demurrer to Evidence Improperly Overruled. Where, upon the trial of an action for personal injuries, plaintiff testified that she alighted from an east-bound street-car and passed back of it and to the northward upon a parallel track four feet distant on which cars traveled in an opposite direction, without looking for an approaching car, and sustained injury, and that by looking eastward along the space between the parallel tracks after passing by the end of the standing car, she could have seen an approaching car for a distance of two blocks, it is held, that it is error to overrule a demurrer to plaintiff's evidence.

Miller, Buchan & Miller, for plaintiff in error.

William B. Sutton, for defendant in error.

ATKINSON J. All the Justices concurring.

OPINION

ATKINSON, J.:

On December 13, 1901, plaintiff was a passenger on one of defendant's cars from Argentine, Kan., to the New York Life building, at the corner of Ninth and Wall streets, in Kansas City, Mo. At Ninth street she was transferred to an east-bound car. The Ninth-street car line was a double-track cable system, east-bound cars using the south track and west-bound cars the north, the space between the two being about four feet. When the car stopped at the corner of Ninth and Wall streets plaintiff alighted on the south side at the rear, or west, end. Before it moved forward she started northward toward the New York Life building. While crossing over the north track she was struck by a west-bound car, thrown violently to the ground, her right arm broken, and she otherwise bruised about the body. This action was brought to recover damages for the injuries sustained.

In her petition plaintiff charged defendant with negligence in operating the west-bound car, alleging, in substance, that it was being operated at a high and dangerous speed at that time, and that no sufficient and timely warning of its approach was given. Defendant answered with a charge of contributory negligence. Upon the trial it was shown from the testimony of plaintiff that she was familiar with the locality, the surroundings, the tracks, and the manner of operating cars thereon; that each morning, for about two months, she had made a like trip over the line from Argentine. Upon cross-examination she testified that she knew that a west-bound car was likely to pass on the north track at any time; that as she was passing the west end of the standing car she looked eastward to see if a car was coming from the east; that she could then only see about ten or fifteen feet to the eastward along the north track; that this was the last time she looked for an approaching car until she was startled by parties' crying out to warn her of danger. Plaintiff further testified that she first saw the car when it was about ten or fifteen feet from her; that had she looked eastward along the north track when she stepped into the space between the two tracks she could have seen a car approaching from the east for a distance of two blocks, at least. A demurrer to plaintiff's evidence was overruled by the court. In this there was error.

This court has frequently said that a traveler, upon approaching a railway-track, in the exercise of ordinary care, must look and listen before crossing over it. In Burns v. Railway Co., 66 Kan. 188, 71 P. 244, it was held that the same rule applies to a traveler about to cross a street-railway track. In U. P. Rly. Co. v. Adams, 33 Kan. 427, 6 P 529, it was said that a railroad-track is itself a warning of danger. This is so because trains may be...