95 Kan. 823 | Kan. | 1915
The opinion of the court was delivered by
This was an action to recover damages for injuries sustained by a girl in a collision with, an automobile on a public highway. June Ratcliffe, who was a little over thirteen years of age, and a number of other children were playing on the way home from school as they passed south on High School avenue. A group of the boys were throwing Osage apples at a number of the girls, and while June and some others were running diagonally across the street, looking in the direction from which the apples were being thrown, the defendants, who were coming from the. east on Maple street, driving their automobile at a moderate rate of speed, collided with June, who did not observe the approach of the automobile at the intersection of the streets. No signal or warning of their approach was given by the defendants, and as June was looking in another direction she did not observe the automobile nor know that it was in the street until the collision occurred. It appears that there were no obstructions to prevent a view from a point two hundred feet east of the intersection of the streets, the direction from which the automobile was coming, nor from a point one hundred and thirty-four feet north on High School avenue, the direction from which the
The plaintiff, who prosecutes this action by her next friend, alleged that the defendants were negligent in failing to give any warning or signal of their approach and in failing to steer the automobile so as to avoid striking her, a child of immature years. The defendants denied that the injury resulted from their neg-, ligence, and insisted that the injury was the result of June’s contributory negligence. It is a close question whether the injury was the proximate result of the defendants’ negligence or of the plaintiff’s contributory negligence, but evidently these were questions of fact which should have been submitted to a jury. It is true that the defendants were driving at a moderate rate of speed, but care in this respect was not the full measure of their duty to persons passing along or across the street. It is true, also, that motorists may ordinarily assume that pedestrians or others using the street will exercise ordinary care. They have no right, however, to assume that the way will always be clear and travelers will always be alert to avoid collision. On the other hand, it is their duty to be vigilant and careful to avoid injuring those who are sharing the use of the streets with them. (Williams v. Benson, 87 Kan. 421, 124 Pac. 531.) It is incumbent on them to be particularly watchful at street crossings, at places where many are boarding or leaving street cars, at places of entertainment where large numbers are coming and going, at public school buildings and in such places
“The operation of an automobile upon the crowded streets of a city necessitates exceeding carefulness on the part of the driver. Moving quietly as it does, without the noise which accompanies the movements of a street car or other ordinary heavy vehicle, it is necessary that caution should be continuously exercised to avoid collisions with pedestrians unaware of its approach. The speed should be limited, warnings of approach given, and skill and care in its management so exercised as to anticipate such collisions as the nature of the machine and the locality might suggest as liable to occur in the absence of such precautions.” (p. 536; Huddy on Automobiles, 3d ed., § 101.)
Under the circumstances shown the failure of the defendants to give any warning of the approach of the automobile tends to establish negligence on their part and is at least sufficient to take the case to the jury.
The question remains, Does the conduct of the plaintiff and her lack of care bar a recovery ? Can it be said, as a matter of law, that she was guilty of contributory negligence ? Although quite young, she- must be held to the exercise of that degree of care which can reasonably be expected from one of her age under the same circumstances. She was sufficiently mature to understand the peril of stepping in front of an automobile even when running at a rate of from six to eight miles an hour. If she had known of the approach of the automobile and had purposely undertaken to outrun it there would be room for the contention that it would be contributory negligence in one of her age. The testimony, however, is that she was looking in another direction and had no knowledge of the approach of the auto
The judgment of the district court will be reversed and the cause remanded for a new trial.