95 Kan. 781 | Kan. | 1915
The opinion of the court was delivered by
The action was one by the plaintiff as executrix for damages for the death of her husband, J. A. Adams, occasioned by the negligence of the railway company and the city. A demurrer was sustained to the plaintiff’s evidence, judgment was rendered against her, and she appeals.
A brief statement of the essential facts favorable to the plaintiff will show that the demurrer was wrongfully sustained.
Washington avenue, in the city of Iola, runs north and south and is intersected by Acers street, which runs east and west. Washington avenue is the main traveled street leading out of Iola toward the south and is paved to a point probably six or eight feet south of Acers street. The track of the railway company occupies the center of Washington avenue to a point something like 250 feet south of Acers street, where the track turns toward the east, and at a distance of some 500 feet from the south line of Acers street the track crosses a bridge over Elm creek. The ordinance permitting the railway company to occupy the street with its track allows the use of T rails, but provides that at no place shall the rails extend above the surface of the street more than three-quarters of an inch
Some slight discrepancies between the 'allegations and the proof as to the precise movements of the horse and the condition of the track are pointed out, but they are not material, they did not constitute a variance, and if they had been important the petition might have been amended to correspond with the proof without changing the cause of action.
The railway company was negligent in maintaining a track which did not comply with the franchise ordinance and which constituted an obstruction to travel on the street. Furthermore, it was a question for the jury whether or not the motorman was guilty of negligence. Although the horse did not rear up until the car was quite near, the motorman saw or should have seen the warning given him, saw or should have seen the plaintiff whip the horse without avail, and should have placed the car under control. The testimony is
It was a fair question for the jury whether or not the city was guilty of negligence on account of the condition of the street. While no witness testified directly as to how long the conditions disclosed had existed, the fair conclusion to be derived from all the evidence is that they were not recently created and indicated such a settled and established state of affairs on a much traveled street that notice to the city could be inferred.
The evidence of Mr. Marker was sufficient to warrant the jury in finding that the raised rail of the track was the proximate cause of the injury, notwithstanding the conduct of the horse which had not yet run away when the deceased was thrown out. The cases of Stephenson v. Corder, 71 Kan. 475, 84 Pac. 124, and Eberhardt v. Telephone Co., 91 Kan. 763, 139 Pac. 416, are readily distinguishable.
The deceased was not guilty of contributory negligence as a matter of law in not turning or allowing the horse to turn across the obstructing rail of the track and in front of the on-coming car, and the deceased was not guilty of contributory negligence as a matter of law in not turning into the ditch on the side of the street, even if he could have.persuaded the horse to turn that way.
The judgment of the district court is reversed and the cause is remanded to the district court with direction to overrule the demurrer to the plaintiff’s evidence and award the plaintiff another trial.