The opinion of the court was delivered by
This is аn action for damages for personal injuries. The jury answered special questions and rеturned a general verdict for plaintiff. The defendant appealed from the order оf the court overruling its motion for judgment on the special findings and entering judgment for plaintiff.
One day in August, 1922, Frаnk B. Fulkerson was driving an automobile from Wichita to Haven. Mildred McRae, about five years of аge, her brother, sister, and aunt were riding in the back seat as guests of the driver and having no contrоl over his operation of the automobile. At a railroad crossing en route the automobile collided with defendant’s train and Mildred was injured. She brought this action by her next friend for damagеs for her injuries and pending the trial died of scarlet fever. The action was revived and prоsecuted in the name of her administrator.
The petition alleges many acts and conditions of negligence on the part of defendant. The jury returned a general verdict for plaintiff for $750 and specifically found defendant negligent in permitting cane and vegetation to grow upon its right of way. The jury exonerated defendant from liability because of other acts of negligence charged and specifically found that the whistle was blown and that there were danger signs at the crossing. They also answered the following special question, No. 7 1-2: “Do you find thаt the injury to Mildred McRae was proximately caused by the manner in which the automobile was driven? Ans.: Yes.” Defendant moved for judgment notwithstanding the general verdict. Plaintiff moved to set aside finding No. 7 1-2 аnd for a new trial. In overruling all these motions and rendering judgment for plaintiff the court incorpоrated in the judgment the following:
*101 “I want the Journal entry to show that from the findings of fact and the generаl verdict, the Court concludes that there are two proximate causes of a cоllision and injury to Mildred McRae, deceased; one, the negligence of the driver of the automobile, as shown by Question 7 1-2, which because of her youth is not attributable to Mildred McRae, and the other, the negligence' of the Missouri Pacific Railway Company in permiting cane аnd vegetation to grow upon its right of way and thereby obstructing the view of the driver of the car аs shown by Question and Answer No. 9.
“If there can be but one proximate cause of the injury and that wаs the negligence of the driver of the automobile, the Court would grant a new trial becausе the attorney for the plaintiff requested that the word ‘sole’ be inserted before the word ‘proximate’ in Question 7 1-2, or the Question be refused. The Court refused this request, thinking that this finding if answered ‘yes’ would dеtermine only the question of contributory negligence on the part of the driver of the automobile.”
Appellant contends that the finding of the jury that it was negligent in permitting cane and vegеtation to grow upon its right of way is a finding of a condition which made the injury possible, rather than а cause of the injury. A negligent, condition may be the cause of an injury as well as a negligent act. This has been frequently recognized by this court. (Corley v. Railway Co.,
Appellant contends that the special finding 7 1-2 in which the jury found that the manner in which the automobile was being driven was a proximate cause of the injury necessarily excludes the defendant from all liability. It is contended that there can be but one proximate cause of the injury and if that was the manner in which the automobile was being driven it necessarily follows that the driver of the automobile alone was liable for the injuriеs sustained. It is not infrequent that the negligent acts of two or more persons may produce аn injury to a third and in such a situation the injured party may, at his option, sue any one or all of thosе whose negligence caused the injury. (Wholesale Grocery Co. v. Kan
The judgment of the court below is affirmed.