89 Kan. 611 | Kan. | 1913
The opinion of the court was delivered by
This is an appeal from an order granting a new trial. Plaintiff sued to recover for. injuries caused by stepping from a street car while it was in
It is true, as appellee urges in his brief, that it is not negligence per se to get off a moving street car; but where a passenger is injured as a result of so doing he must suffer the consequences unless the injury is caused by some negligence of the company. If, as plaintiff contends, it was not negligence for him to step from the moving street car under the circumstances, it could hardly be negligence of the defendant for the conductor to refrain from warning him not to do so. Besides there is no evidence that the conductor was aware of plaintiff’s intentions.
Whether or not a person of ordinary care would have done just as plaintiff did is not the question. Frequently a person is injured although exercising great care and. caution to avoid accident; and of tener still the man who acts with only ordinary care meets with a mishap. The plaintiff’s act and that alone occasioned the injury. The jury might have found that he was acting with ordinary care, but he can not recover
The. trial court was right in directing a verdict, and as plaintiff upon his own statement of the facts is not entitled to recover it was error to grant a new trial.
The judgment is reversed.