Whiteker v. The Wichita Railroad and Light Company

• Decision Date: 07 April 1928
• Docket Number: 27,965
• Citation: 265 P. 1103,125 Kan. 683
• Parties: MATTIE F. WHITEKER, Appellee, v. THE WICHITA RAILROAD AND LIGHT COMPANY, Appellant
• Court: Kansas Supreme Court

265 P. 1103

125 Kan. 683

MATTIE F. WHITEKER, Appellee, v. THE WICHITA RAILROAD AND LIGHT COMPANY, Appellant

No. 27,965

Supreme Court of Kansas

April 7, 1928

Decided January, 1928

Appeal from Sedgwick district court, division No. 4; ISAAC N WILLIAMS, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Evidence--Sufficiency. A finding of negligence cannot rest on mere conjecture, but must be established by competent proof.

2. STREET RAILROADS--Injury to Person on Track--Vigilance of Motorman--Evidence. A person was struck and killed while running a few feet in front of a moving street car, and in an action against the defendant to recover for the loss a finding of the jury was returned to the effect that the injury and death were due to the negligence of the motorman in failing to keep a lookout for the safety of persons crossing the tracks in front of the car. On this finding judgment for plaintiff was rendered. The evidence in the case considered, and it is held that the finding is without adequate support.

Robert C. Foulston, W. E. Holmes, D. W. Eaton, George Siefkin, Sidney L. Foulston and Lester L. Morris, all of Wichita, for the appellant.

Clyde E. Souders and Otto R. Souders, both of Wichita, for the appellee.

OPINION

JOHNSTON, C. J.:

Mattie F. Whiteker sued the Wichita Railroad and Light Company, to recover damages for the death of her husband, J. S. Whiteker, caused, it was alleged, by the negligence of the company. She recovered damages in the sum of $ 2,734, and defendant has appealed.

She alleged that her husband was in the habit of boarding street cars at the intersection of two of the principal streets of Wichita at about 6:35 in the evening, and in going from his home to board the car it was necessary for him to cross the street-car tracks in order to reach the entrance door of the car, and that on the occasion in question when passing over the tracks he was negligently struck by the advancing car and killed.

The grounds of negligence assigned by plaintiff were, operating the car with defective brakes; insufficient headlights; no sand in the sand box, which is necessary in an emergency stop; failure to slacken speed or stop the car when the motorman saw the peril of Mr. Whiteker; operating the car at a reckless rate of speed under the circumstances, and in violation of a city ordinance. The jury acquitted the defendant of all the charges of negligence, except that the motorman failed to keep a proper lookout for Mr. Whiteker, as disclosed in the following findings of fact, two sets of which were submitted:

"Q. At what rate of speed was the defendant company's car moving immediately prior to the accident? A. Two miles per hour.

"Q. Was the headlight on the street car burning at the time of the accident? A. Yes.

"Q. Was the gong on the street car sounded immediately prior to the time it entered the intersection? A. Yes.

"Q. Did J. S. Whiteker use due care for his own safety in crossing in front of the defendant company's car? A. Yes.

"Q. Could the defendant company's motorman have done anything he did not do after he observed J. S. Whiteker upon the tracks in front of the street car? A. No.

. . . .

"Q. How far in front of the street car was J. S. Whiteker when he was first observed by the motorman? A. Three to four feet.

"Q. What negligence of the defendant company or its motorman caused the accident? A. Lack of diligent watch.

"Q. Was J. S. Whiteker's action in crossing the street-car tracks in front of the approaching street car a contributing and proximate cause of the injury? A. Slightly negligent.

"Q. Do you find that J. S. Whiteker signaled the car to stop? A. Yes.

"Q. If you answer the preceding question in the affirmative, then give: (a) The location of J. S. Whiteker at that time. A. About four or five feet south of center of the intersection of Indianapolis and Main street, between car tracks.

"Q. (b) The location of the car at that time. A. Car was south of intersection of Indianapolis and Main street.

"Q. Were the defendants negligent in operating the street car at the time and place of the death of plaintiff's husband without sufficient headlight? A. No.

"Q. If you find that the defendants were negligent in operating the said street car without sufficient headlight, was that one of the proximate causes of the death of plaintiff's husband? A. No.

. . . .

"Q. If you find the defendants were negligent in operating the said street car without sand in the sandbox of the car, was that one of the proximate causes of the death of plaintiff's husband? A. No.

"Q. Were the defendants negligent in operating the said street car at the said time and place without the brakes being in proper condition? A. No evidence showing the condition of brakes.

. . . .

"Q. Were the defendants negligent in this, that the motorman did not keep a proper lookout for Mr. Whiteker? A. Yes.

"Q. Did Mr. Whiteker, the plaintiff's husband, signal the car of the defendant to stop? A. Yes.

"Q. Did the defendant's motorman keep a vigilant watch for all persons on foot, either on the tracks or moving towards it at the time and place in question? A. No."

It is seen that the only negligence found was the failure of the motorman to keep a proper lookout or a diligent watch. It appears that a misting rain was falling that night, and that the street was slippery. The...