80 Kan. 91 | Kan. | 1909
The findings relating to the plaintiff’s observation of the approaching car do not necessarily conflict with the findings that he exercised due care at the time of the collision or with the general verdict. Under the case of Railroad Co. v. Gallagher, 68 Kan. 424, it was a fair question for the jury whether he was guilty of contributory negligence. If, however, he was negligent, the finding that the motorman might have avoided inj uring him by the exercise of due care after he was observed to be in danger supports the general verdict. He could not quickly extricate himself, his horses and his wagon from peril, as in Dyerson v. Railroad Co., 74 Kan. 528, so that the case is ruled by Railway Co. v. Arnold, 67 Kan. 260.
The judgment of the district court is affirmed.