107 Kan. 6 | Kan. | 1920
The opinion of the court was delivered by
The defendant appeals from a judgment recovered by the plaintiff for injuries sustained while in a transfer truck which had been driven across the defendant’s tracks between two cars going in opposite directions, one of which collided with his truck and shoved it against an iron trolley pole, and the other of which collided with his truck, severely injuring him.
It seems quite likely that the cars were both running in violation of the speed ordinance of the city, and the plaintiff was crossing in a manner prohibited by another ordinance providing how a vehicle should cross a street.
“But, although plaintiff was guilty of negligence in placing himself in a position of danger, . . . yet if his negligence had ceased and the defendant, ... hy the exercise of ordinary care, ought to have seen the danger to plaintiff in time to avert the same, and failed to do so, or . actually saw plaintiff’s danger in time to avert the same by the exercise of ordinary and reasonable care under the circumstances, . . . and failed to do so then the defendant is responsible for any injury directly resulting to plaintiff from such failure to exercise ordinary care in either case.”
Among the answers to special questions returned by the jury were the following:
“Q. 6. Did the plaintiff have time to leave the van after it was struck by the east bound car, while it was being shoved down the street to the trolley pole, and avoid injury, before it was struck by the west bound car? A. 6. So confused had no time.
“Q. 7. What, if anything, did the plaintiff do to escape injury, after the van or truck was struck by the east bound car, while it was being shoved down the track to the trolley pole, and before it was struck by the west bound ear. A. 7. Nothing could be done.
“Q. 8. Could not the plaintiff, by looking and listening and taking-proper precautions for his own safety, have stopped his truck or have caused his truck to be stopped before it went upon the defendant’s tracks, while it was in a position of safety, and thus have avoided being struck by either the east bound or west bound car? A. 8. Yes, by remaining in the position he was in before starting.
“Q. 9. If you answer the last question in the negative, state what there was to prevent the plaintiff from stopping or causing his truck to be stopped while it was in a position of safety thus avoiding injury. A. 9. Nothing, because he thought he had ample time to cross ahead of the west bound car.”
Counsel for the defendant contend that under the facts and findings the plaintiff should have been held guilty of continuing negligence; that the defendant is not responsible for his being “confused”; and that he tried to leave the truck at the wrong place. All these matters are regarded as questions of fact properly answerable by the jury.
Counsel for the defendant frankly concede that the doctrine
The rule so established was correctly given by the trial court, and the record presenting no error, the judgment is affirmed.