Weir v. The Kansas City Railways Company
| Citation | 108 Kan. 610,196 P. 442 |
| Decision Date | 12 March 1921 |
| Docket Number | 23,070 |
| Parties | MARGARET WEIR, Appellee, v. THE KANSAS CITY RAILWAYS COMPANY, Appellant |
| Court | United States State Supreme Court of Kansas |
Decided January, 1921.
Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.
Judgment reversed and cause remanded.
SYLLABUS BY THE COURT.
1. EVIDENCE--Relative Value of Affirmative and Negative Testimony. The testimony of a witness that a warning of an approaching street car was given is ordinarily worth more than the testimony of two witnesses who truthfully say that they did not hear it given.
2. STREET RAILWAY--Pedestrian in Public Highway--Assumptions that May Be Indulged by Motorman. A motorman on a street car may rightfully assume that an adult pedestrian apparently capable of taking care of herself, who is walking in the wagonway between the track and the curbing, a space of about six feet, and not near enough to the track to be struck by the forward end of the car, will step aside far enough to avoid being struck by the overhang of the car as it rounds a curve which they were approaching and of which she was aware.
3. SAME--Personal Injuries--Contributory Negligence. It is the duty of one walking in the street close to a street-car track in which there is a curve, and who is aware of the track on which cars are frequently passing and of the curve in the track, and is capable of taking care of herself, to take heed of the perils of the place and step aside to an available place of safety; and where she fails to do so, even when the front end of the car passes her, and is injured by the hind end of the car as it takes the curve, she will be deemed to be guilty of such contributory negligence as will bar a recovery for the injuries sustained.
O. L. Miller, E. S. McAnany, M. L. Alden, T. M. Van Cleave, and C. C. Glandon, all of Kansas City, for the appellant.
W. C. Rickel, and Charles A. Blair, both of Kansas City, for the appellee.
In traveling along a narrow street Margaret Weir was struck by a street car of the Kansas City Railways Company as it rounded a curve in the street, and for the injuries sustained she recovered a judgment from which defendant appeals.
In her petition she alleged in substance that the company has a double track on Thirteenth street, Kansas City, the tracks being located within about five feet from the curbing, which at that place is about a foot high and six inches wide. There is a curve in the street, and on the morning of the accident she was walking northward on the pavement in the narrow space between the railway track and the east curb. She alleged that she was walking out in the paved street because the sidewalk was unpaved, covered with snow and impassable for pedestrians. She further stated that the car of the defendant approached the curve while her attention was drawn to her course ahead, and that just as the car rounded the curve and she was in the act of stepping upon the curb the rear end of the car swung out over the curb, striking and injuring her. She charged that the company was negligent in failing to warn her of the approach of the car and failing to keep a lookout for pedestrians or to stop or slacken the speed of the car when the company knew or should have known of the dangerous curve, but drove the car on its course past the curve when the servants must have seen her peril as she walked along with her back towards the car. The defendant's answer was a general denial and an allegation that plaintiff's own negligence contributed to her injury.
No special questions were submitted to the jury and the general verdict was in favor of the plaintiff. Defendant contends here that the evidence does not show that the plaintiff's injury was due to the negligence of the defendant, and also that it does establish that it was the result of her own negligence.
First, as to the negligence of the defendant. It was alleged and claimed that the gong was not sounded nor any warning given of the approach of the car. The plaintiff called the motorman, who was operating the car which struck her, as a witness and he testified that he saw the plaintiff traveling ahead of the car, and rang the gong, but that she continued on her course and that if she had stayed as far from the track, which he said was about six or seven feet, as she was when he first saw her she would have been in the clear. Another witness who was near the place of the accident and saw the plaintiff when she was struck testified that she did not hear a gong sounded, but she declined to say that it was not sounded. The plaintiff herself testified that she did not hear a gong and did not look nor know that a car was coming towards her. In view of the fact that one of plaintiff's witnesses stated that a gong was actually sounded, and that only negative evidence was given to the contrary, a serious doubt is raised as to whether she made prima facie proof of the averment that no warning was given. The testimony of a witness that one was given is worth much more than the testimony of two witnesses to the effect that they did not hear it given, since a bell may have been rung without attracting the attention of those who truthfully say they did not hear it. (K. C. Ft. S. & G. Rld. Co. v. Lane, 33 Kan. 702, 7 P. 587.) Again, although the motorman saw the plaintiff walking in the street close to the curb, it would naturally occur to him that one walking near the track, who appeared to have the use of her senses and not under any physical or mental disability, would heed the warning and step from the track and out of danger. ( Campbell v. K. C. Ft. S. & M. Rld. Co., 55 Kan. 536, 40 P. 997.) The plaintiff was of mature years, and although close to the danger line she was apparently capable of taking care of herself, and unless it was apparent that she was unaware of the danger or unable to protect herself the motorman had the right to assume that she would withdraw to a place of safety. It was held in Matulewicz v. Metropolitan St. Ry. Co., 107 A.D. 230, 95 N.Y.S. 7, that--
"A motorman on a street car may rightfully assume that an adult, apparently in full possession of health and vigor, standing in the street near a curve in the track, but not near enough to be struck by the forward end of the car, will draw back far enough to avoid being struck by the overhang of the car as it rounds the curve." (Syl. P 1.)
In the opinion it was said:
"In view of the well-known fact that the rear of a street car in rounding a curve necessarily swings out some little distance from the track on the outer edge, it is extending the obligation of street railroad companies too far to impose upon the conductors of their cars the duty of warning persons upon the street against the danger of collision with the rear end after the body of a car has passed in safety." (p. 8.)
The car of the defendant was going slowly past the plaintiff estimated at a rate of from one to five miles per hour, and the front end of the car which she must have seen passed her safely. If she had stopped at that time she would have been out of danger. As to the duty of a motorman where a pedestrian is near the track and must have seen the front end of the car as it slowly passed and where it was claimed that the motorman should have stopped the car for the...
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