100 Kan. 74 | Kan. | 1917
Lead Opinion
The opinion of the court was delivered by
Charles Gamble, a minor, sued the Uncle Sam Oil Company to recover damages for personal injuries sustained when he was run over by one of defendant’s motor trucks. Plaintiff recovered judgment for $10,900 and the defendant appeals.
The accident occurred in Kansas City, Kan., on Osage avenue, on the south side of which plaintiff in company with a companion was standing as the defendant’s truck came eastward, along the street past them at a rate of from six to ten miles per hour. In the seat with the driver sat a boy named “Curley” Wilson, an acquaintance of plaintiff. Remarking to his companion that he was going to get on the truck, plaintiff ran in pursuit of the truck and reached up and took 'hold of it with his hands, but he failed to get a good foothold and his feet slipped off. Hanging thus by. his hands, without succeeding in putting his feet on the running board or other part of the truck, it progressed about a block, and then plaintiff’s hold gave way and he fell to the street in such a way that the right hind wheel of the truck passed over and crushed his right leg. Shortly after he fell the truck was stopped, within twenty-two feet. The injury necessitated the amputation of his leg. The truck was a large, heavy one, capable of carrying eighteen barrels or drums of oil. The driver’s seat was enclosed by a cab, at the left side of which was situated the steering wheel. The floor of the cab was about thirty inches from the ground. Immediately back of the cab was the bod:/ or bed of the truck which was wide enough to extend over the hind wheels, this being the space where the load was carried. Its sides were made of large slats fastened to uprights. The footboard, which connected with the front fenders, expended only about as far as the rear edge of the cab, and at the end of the foot board was a tool box. The testimony was in conflict as to the place on the truck where the plaintiff was
Error is assigned on the ruling of the court refusing to strike out the averment that the motor truck was peculiarly attractive to children of tender years and perilous to those who might be attracted to it or led to catch on and cling to it as it passed along the streets; and that this was known or should have been known by the defendant. The motion should have been sustained. The attractive nuisance doctrine can not be extended to include motor trucks nor made applicable to cases jlike this one. Motor trucks are in common use and no more attractive nuisances than are drays -and other ordinary vehicles used for carrying persons and goods along the streets and
Another averment in the petition which was challenged by a motion to strike and which was overruled is the subject of complaint. It was alleged and evidence was introduced tending to show that plaintiff and other children had been permitted to cling to and ricje on the defendant’s trucks previous to the accident in question. In the opening statement in behalf of the plaintiff the jury were told that the defendant had allowed boys openly and repeatedly to hang and ride upon its trucks, and that this negligent permission and practice had induced the plaintiff to attempt the hazardous thing of jumping upon this passing truck. Much testimony along this line was received over the objection of defendant, and its admission was error. It was decided in Wilson v. Railway Co., supra, that “the fact that the plaintiff and other boys had previously jumped on and off the cars of the company, without remonstrance from the employees of the company, did not amount to an invitation from the company to plaintiff to hop
Another ruling along the same line was when the court permitted evidence to the effect that Wilson, who was riding on the truck, waved his hand to the plaintiff as the truck passed him. This had a tendency to show that the plaintiff was invited to make the reckless attempt to get on the truck. In the opening statement counsel for plaintiff said that Wilson, who was riding with the driver, motioned to the plaintiff to get on the truck, and that in response to that motion and on the strength of the practice of the defendant frequently repeated the plaintiff made the attempt. When the evidence was offered defendant objected, saying that Wilson was not an employee of defendant and his act could not bind it, and also that/his act could not be regarded as an invitation or binding upon the defendant unless Wilson was an employee of the defendant. The objection was overruled, and although there was no .proof or claim even that Wilson was an employee of the defendant nor any proof that the motion of Wilson, if made, was observed by the driver of the truck, the evidence as to the inviting motion was left with the jury. It is not easy to say that the evidence was without prejudice and it should have been excluded.
One of the principal errors discussed is the lack of evidence to show that the driver of the truck, who was seated on the side of the truck opposite to the one to which the plaintiff was
In Handley v. Railway Co., 61 Kan. 237, 59 Pac. 271, a boy fifteen years old undertook to steal a ride on a train and was injured, and it was decided that “being a trespasser, however, and grossly negligent, no duty arose in his favor Until his presence was discovered; and there can be no recovery unless, after discovering that he was in a perilous position, the company failed to use the means within its power to avoid injuring him.” (p. 238.) In that case, although there were employees in sight of the young man, and some testimony that his peril was obvious to people near him, a demurrer to the plaintiff’s evidence was sustained.
In Wilson v. Railway Co., 66 Kan. 183, 71 Pac. 282, a twelve-year-old boy was injured who was jumping upon and riding on the cars of a moving freight train. While he was on the train a brakeman looked and smiled at him, but said nothing and did not order him to leave. The case was disposed of on a demurrer to the plaintiff’s evidence, and it was held that as he was familiar with moving cars and had sufficient
In Mendenhall v. Railway Co., 66 Kan. 438, 71 Pac. 846, a young man fifteen years old paid a brakeman upon a train twenty-five cents and arranged with him to ride on the platform of a baggage car, and that he would get off the train when stops were made and would conceal himself so that the conductor could not see him. Through the alleged negligence of the defendant his feet were cut off, and in his action it was held that notwithstanding the knowledge and action of the brakeman the boy was a trespasser and the company owed him no duty except to avoid willful and wanton negligence. The ruling was made upon a demurrer to the facts alleged in the plaintiff’s petition and upon the theory that willful negligence was not shown and therefore no recovery could be had.
The sufficiency of the evidence in behalf of plaintiff was challenged by a demurrer, and in defendant’s brief attention is called to the fact that the allegations set forth by plaintiff himself show that plaintiff was a trespasser, and that plaintiff sought to avoid the effect of his gross negligence by invoking the application of the attractive nuisance rule and also his youth and immaturity. Neither of these can be held to relieve him from the consequences of his negligence, and he can not recover unless there is proof that the defendant willfully and wantonly neglected to protect him after learning that he was in danger. In answer to a question the jury stated that the driver knew the plaintiff was attempting to get on the truck during a sufficient time to have enabled the driver to stop the truck before plaintiff fell. This finding does not ■necessarily imply that the driver knew that the plaintiff was in danger nor that the driver wantonly drove on knowing that plaintiff was likely to fall and be injured. In answer to another question the jury stated that the driver did not do all that a prudent person could to stop the truck as soon as he knew some one was in danger. This answer and the general verdict include a finding that the driver was- negligent toward the plaintiff. Does the evidence sustain the finding? There
In Handley v. Railway Co., 61 Kan. 237, 59 Pac. 271, it was contended that a train porter was watching and looking at a trespasser at the time he was injured. It was decided that it was competent for a witness to state the direction to which the porter’s eyes were turned, but the witness could not testify as to what the porter saw. It was said: “When there are a number of things within the range of a person’s vision, it is only conjecture or speculation to say that he saw any one of them merely because his eyes were turned in that direction.” <p. 239.) It was held there on a demurrer to the evidence that willful and wanton negligence of 'the defendant was not made out.
Again, the relations between the driver and the plaintiff appear to have been good, as the plaintiff testified that the driver had always been kind to him, and we find nothing in the testimony indicating that the driver had other than the kindest of feelings toward the plaintiff and the boys of his acquaintance. We are of opinion that the evidence does not establish willful or wanton negligence on the part of the driver toward the plaintiff.
We find nothing substantial in the other objections made by the defendant, but for the errors mentioned the judgment is reversed and the cause remanded for a new trial.
Dissenting Opinion
(dissenting): I concur in all that is said in the opinion, but dissent from the judgment ordering a new trial. In my opinion judgment should be ordered for the defendant as there is no evidence to sustain a finding of wantonness on the part of the defendant.