99 P. 594 | Kan. | 1909
The opinion of the court was delivered by
We have here the question whether the plaintiff used ordinary care in attempting to cross a street-car track in front of a moving car, with which he collided to his injury, the court of common pleas having sustained a demurrer to his evidence in an action for damages against the street-car company.
The court is unable to interpret these facts in any reasonable way which will clear the plaintiff of contributory negligence. Without taking the precaution which the situation required, and which his own state of mind should have prompted him to observe, he took the chances of a race with the car.
The plaintiff had the right to begin his journey with the assumption that cars on the next track would be run at a reasonable rate of speed and would be under ready control when approaching street crossings. But such an assumption can not be relied upon as a guide to conduct or as an excuse for taking a risk after knowledge or fair warning to the contrary. Due care requires that a man shall look for approaching cars before crossing a railway track. This duty would be barren of obligation if he were allowed to ignore the result of the use of his faculties and to act upon assumptions contrary to facts of easy apprehension. If he sees a
The plaintiff failed at all these points. He deliberately stepped away from his own car and looked for the approaching car, fully sensible of the importance of his precaution. He saw the car at a comparatively short distance from him, and made a calculation respecting his movements. He had a fair side view—the best for his purpose. The car was running nearly thirty feet per second, several times as fast as he had any right to expect to see, and by the time he arrived at the second point of observation it was almost upon him. What he then saw was amply sufficient to put him on guard against defects in his first observation, if there were any. The distance covered was out of all proportion to what he -had the right to suppose. A reasonable man expecting a car to approach at no more than the ordinary rate of speed, and expecting to see it a safe distance up the track as the result of that speed, would have been surprised at least that the car should suddenly be so near. Seeing the car where it could not possibly have been, judging from his first observa
The law is clear and could not be made clearer by coining new phrases to express it. The facts are accepted as the plaintiff and his witnesses state them to be up to the time he was struck, and after that they present no difficulty. An analysis of decided cases involving different facts would not elucidate the matter. Mindful of its duty when dealing with a demurrer to evidence the court holds as a matter of law that the plaintiff was guilty of contributory negligence, negligence on the part of the defendant being taken for-granted.
Some arguments are advanced to avoid the legal consequence of contributory negligence on the part of the plaintiff. It is said the defendant was guilty of recklessness and wantonness, but recovery is not asked upon that ground. The doctrine of the last clear chance is invoked, but, assuming that after the plaintiff was struck he might have been protected by- stopping the car, the abstract is barren of any evidence showing how quickly the car could have been or ought to have been stopped after the motorman might or should have known the plaintiff was still engaged with the car. A warning to the plaintiff before the car struck him that it was coming was useless because he saw and knew it was coming, and the effect which a signal might have had upon the paintiff if one had been given is purely speculative.
The judgment of the court of common pleas is affirmed.