The Metropolitan Street-Railway Company v. Arnold

• Decision Date: 06 June 1903
• Docket Number: 13,181
• Parties: THE METROPOLITAN STREET-RAILWAY COMPANY v. CORA ARNOLD
• Court: Kansas Supreme Court

72 P. 857

67 Kan. 260

THE METROPOLITAN STREET-RAILWAY COMPANY v. CORA ARNOLD

No. 13,181

Supreme Court of Kansas

June 6, 1903

Decided January, 1903.

Error from Wyandotte district court; E. L. FISCHER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PRACTICE, SUPREME COURT--Review of Evidence. If a judgment entered on a general verdict finds support in the evidence upon any theory of the law embraced within the issues made by the pleadings, it will not be reversed because entirely unsupported by the testimony.

2. STREET-RAILWAY--Negligence of Motorman--Question for Jury. In an action against a street-railway company for damages in wrongfully causing the death of one on a public street, not a trespasser, although the evidence may show that the negligence of deceased in coming upon the track in a position of danger in the first instance contributed toward the collision, yet if there is evidence tending to show that the motorman in control of the car which caused the death saw deceased in the position of danger, or by the exercise of reasonable diligence should have seen him, in time to stop the car and avoid the death, the proximate cause of the death is one of fact for the jury.

Miller Buchan & Morris, for plaintiff in error.

Warner, Dean, McLeod & Holden, and Angevine & Cubbison, for defendant in error.

POLLOCK J. All the Justices concurring.

OPINION

POLLOCK, J.:

This was an action by Cora Arnold against the Metropolitan Street-railway Company to recover damages for the wrongful death of her husband, James Arnold, alleged to have been caused by the negligence of defendant company. There was a trial of the case to the court and jury. A general finding alone was returned by the jury, which was approved by the court and judgment entered thereon. To reverse this judgment defendant brings error.

The principal ground of error urged and relied on is that the undisputed evidence found in the record shows the deceased to have been guilty of such contributory negligence as to bar a recovery for his death. Much of the material evidence is printed in the briefs and argument of counsel. From the evidence it is gathered that the deceased, about six o'clock in the evening of October 9, 1900, was traveling north on the east side of Seventh street in Kansas City, riding a bicycle at a rapid rate of speed. For a distance of about three hundred feet before reaching the intersection of Seventh street and Central avenue in said city, Seventh street inclines about fourteen feet. It is smoothly paved with asphalt. As deceased descended this incline a car was passing on defendant's line of road from west to east on a surface track along Central avenue at the speed of about eight miles per hour. The relative positions of the deceased and the car were such that, had both proceeded at the same rate of speed they were traveling and in the same direction, the deceased would have collided with the car at the intersection of the street and avenue. The car did not stop at Seventh street. There is a conflict in the testimony as to whether the gong was sounded or other warning given of the approach of the car to Seventh street. A large two-story building, eighty by one hundred and twenty feet, stands on the corner lots southwest of the intersection of Central avenue and Seventh street, cutting off from view the approach of any one traveling north on Seventh street from one traveling eastward on Central avenue. However, the deceased could be seen from the car some thirty or forty feet before he reached it.

Central avenue and Seventh street are much used by the traveling public. East of Seventh street it is paved with blocks and quite rough. The tracks of the railway are laid above the surface of the street. When deceased reached Central avenue he turned eastward parallel with the running car. A few feet east of Seventh street, after the bicycle had passed over from the smooth asphalt pavement upon the rough block pavement, from some cause the deceased was thrown from his bicycle in front of the moving car, carried some distance, and killed. There was evidence tending to show that he was attempting to pass over the street-car track in front of the moving car; that the bicycle wheels struck the rails of the street-car track, slipped thereon, and threw deceased in front of the car. While such is the probable fact, the evidence is not wholly undisputed or entirely free from doubt. Upon this state of the record, it is contended that the verdict is entirely without evidence in its support, and that it clearly appears that deceased was guilty of contributory negligence in bringing on the collision which terminated in his death, and that this is an end of the controversy.

As has been seen, there are no special findings of fact in this record. We have alone the general finding and judgment thereon. In support of the judgment rendered, it is urged that, if reasonable minds might arrive at different conclusions from all the testimony in the record as to the contributory negligence of the deceased, the proximate cause of the injury was a question of fact for the jury to determine. It is further insisted that the action is for the wrongful death of the deceased, not for negligently causing the collision. Therefore, if the judgment finds support in the evidence upon any theory of the law embraced within the issues made by the pleadings, it must be affirmed. In support of this position, it is argued that, although this court may determine from an examination of the evidence that the negligence of deceased contributed to the collision between the car and deceased, yet, if the motorman in control of the car saw deceased in a position of danger, or by the exercise of reasonable diligence should have seen him in such position in time to stop the car before killing him and thus avoid the tragedy, the defendant is liable. This exception to the general rule as to the effect of contributory negligence, once established upon a right of action, is well supported by authority. In the case of Inland & Seaboard Coasting Co. v. Tolson, 139 U.S. 551, 558, 11 S.Ct. 653, 35 L.Ed. 270, Mr. Justice Gray, delivering the opinion of the court, said:

"The other instruction was in these words: 'There is another qualification of this rule of negligence, which it is proper I should mention. Although the rule is that, even if the defendant be shown to have been guilty of negligence, the plaintiff cannot recover if he himself be shown to have been guilty of contributory negligence which may have had something to do in causing the accident; yet the contributory negligence on his part would not exonerate the defendant, and disentitle the plaintiff from recovering, if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the plaintiff's negligence.'

"The qualification of the general rule, as thus stated, is supported by decisions of high authority, and was applicable to the case on trial. Radley v. London & Northwestern Railway, 1 App. D.C. 754; Scott v. Dublin & Wickloff Railway, 11 Irish Com. Law, 377; Austin v. New Jersey Steamboat Co., 43 N.Y. 75, 82; Lucas v. Taunton & New Bedford Railroad, 6 Gray 64, 72; Northern Central Railway v. Price, 29 Md. 420. See, also, Williamson v. Barrett, 54 U.S. 101, 13 How. 101, 109, 14 L.Ed. 68."

In Grand Trunk Railway Co. v. Ives, 144 U.S. 408, 429, 12 S.Ct. 679, 36 L.Ed. 485, the same doctrine was announced in the opinion by Mr. Justice Lamar, as follows:

"Without going into a discussion of these definitions, or even attempting to collate them, it will be sufficient for present purposes to say that the generally accepted and most reasonable rule of law applicable to actions in which the defense is contributory negligence may be thus stated Although the defendant's negligence may have been the primary cause of the injury complained of, yet an action for such injury cannot be maintained if the proximate and immediate cause of the injury can be traced to the want of ordinary care and caution in the person injured; subject to this qualification, which has grown up in recent years (having been first enunciated in Davies v. Mann, 10 M. & W. 546), that the contributory negligence of the party injured will not defeat the action if it be shown that the defendant might, by the exercise of reasonable care and prudence have avoided the consequences of the injured party's negligence. Inland & Seaboard Coasting Co. v. Tolson, 139 U.S. 551, 558, 35 L.Ed. 270, 11 S.Ct. 653, and cases cited; Donohue v. St. Louis &c. Railroad, 91 Mo. 357, 2 S.W. 424; ...