The Metropolitan Street Railway Company v. Agnew

• Decision Date: 11 October 1902
• Docket Number: 12,683
• Citation: 65 Kan. 478,70 P. 345
• Parties: THE METROPOLITAN STREET RAILWAY COMPANY v. MARIE M. AGNEW et al
• Court: Kansas Supreme Court

70 P. 345

65 Kan. 478

THE METROPOLITAN STREET RAILWAY COMPANY v. MARIE M. AGNEW et al

No. 12,683

Supreme Court of Kansas

October 11, 1902

Decided July, 1902.

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

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

STREET-RAILWAY -- Injury at Crossing -- Duty of Traveler. In an action against an electric street-railway company, by a party who was struck by a car and injured while attempting to drive over its tracks in a walk at a street-crossing, the company introduced testimony that an approaching car could be seen for a distance of 277 feet by a person standing within fifteen feet of the railway-tracks. This contradicted the plaintiff, who testified that, by reason of obstructions to her view, she could see in the direction the car came eighty or ninety feet only, when she was fifteen feet from the crossing. Held, that it was error to refuse an instruction tendered by the railway company to the effect that, if an approaching car was within the range of vision of the person injured, she was chargeable with knowledge of its coming, notwithstanding the fact that she testified that she did not see it.

Miller Buchan & Morris, for plaintiff in error.

Anderson & Robinett, for defendant in error Marie M. Agnew.

SMITH J. All the Justices concurring.

OPINION

SMITH, J.:

Defendant in error recovered a judgment against the Metropolitan Street Railway Company for personal injuries sustained at a place where Parallel avenue, in Kansas City, Kan., crosses the tracks of said company. She was driving a horse hitched to a surrey, and in attempting to go over the railway-tracks the vehicle was struck by a car. She testified that the horse was going in a walk, and that at a distance of fifteen feet from the crossing she could see up the track (from which direction the car came that caused her injuries) no further than eighty or ninety feet by reason of obstructions to her view, caused by houses and trees. She also testified that when within six or eight feet from the track she looked up north and saw no car approaching. The defendant below introduced a witness who testified that he had made measurements and taken observations at the place where the accident occurred, showing that at a distance of fifteen feet west of the street-railway track a car could be seen approaching from the north at a distance of 277 feet. Plaintiff below was familiar with the crossing, and knew that cars were constantly passing over it.

The negligence alleged and sought to be proved by the plaintiff below was that the street-car was recklessly run at a speed of eighteen miles per hour, and that it approached the street-crossing without ringing the bell or giving other warning. Plaintiff below did not deny that the car could be seen at a distance of eighty or ninety feet from the...