85 P. 287 | Kan. | 1906
The trial court was not warranted in sustaining the demurrer to plaintiff’s evidence. There is testimony that Hurdle, the deceased, in going to and from his work had used a railroad velocipede on the railroad-track for years with the knowledge and consent of the company; that the engineer had some reason to believe that Hurdle would be upon the track about the time that he was run down and killed; that the engineer was looking along the track and must have seen Hurdle a distance of about 600 feet from the point of collision; and that the engineer did not give any signal or warning of approach until just before the collision.
Whether it was a reckless injury by the engineer, or whether recovery is barred because of Hurdle’s own negligence, are questions for the determination of a jury. Viewing the testimony in the light most favorable to the plaintiff, and allowing all reasonable inferences in her favor, we think the demurrer to the evidence should have been overruled, and therefore the judgment of the court is reversed, and the cause remanded for further proceedings.