100 Kan. 122 | Kan. | 1917
The opinion of the court was delivered by
Action by Leo Fred Wyrick, a minor, against the Parsons Railway & Light Company to recover damages for personal injuries. Verdict for $12,000 was returned in favor of plaintiff on November 20, 1915, and judgment rendered thereon February 19, 1916. The Parsons Railway & Light Company was dissolved on December 31, 1915, and the Kansas Electric Utilities Company became its successor. The court had the judgment of February 19,1916, expunged, and in place thereof had judgment entered against the Parsons Railway Company as of November 20, 1915, and this judgment was then revived against the Kansas Electric Utilities Company, which appeals.
The plaintiff, a child about twenty months old, was run over by a street car of the defendant at the intersection of Lincoln
Special findings were made by the jury to the effect that the view of the motorman was unobstructed for a distance of 900 feet as he approached Kennedy avenue; that he slackened the speed of the car near Kennedy avenue to six or seven miles an hour; that a passenger alighted on the south side of
There was a complaint of an answer by the mother of the child as to how far she could see a street car approaching, looking from the door of her house. The objection was that the question called for a conclusion. Instead of merely answering “Yes” she stated that she could see cars at Gabriel avenue. The defendant did not ask to have the answer stricken out, and in view of other testimony in the case-no prejudice could have arisen as to this answer. Only prejudicial errors afford grounds for reversal.
Complaint is made of instruction No. 14 given to the jury. The objection is that the court assumed that evidence had been introduced that the child had passed over the parking and continued to travel toward the track without stopping. The jury were told in effect that if the child was seen on the sidewalk or parking, the motorman had a right to assume that it was simply playing there and would not go upon the track unless he was moving toward the track and continued his co'urse without stopping until he reached the track; and further, that if he did see the child, or in the exercise of reasonable care could have seen him,' leaving the park and going upon the street and proceeding in his Course toward the track until the same was reached and the injury sustained, and if after seeing the child going in the direction of the track diagonally across the square, or in the exercise of reasonable care he could have seen him going toward the track after reaching the street; and further, if at that' time the motorman in the exercise of care in applying the brakes or reversing the power could have stopped the car and avoided the accident and failed
In Haines v. Goodlander, 73 Kan. 183, 84 Pac. 986, it was said:
“The court should present the theories of the respective parties, and in doing so may refer to the lines of evidence introduced by the parties and upon which each relies, carefully refraining from expressing an opinion as to what the facts do or do not prove and from giving any intimation from which the opinion of the court might be inferred. Instead of stating abstract principles of law, the court should aid the jury by making a concrete application of the law to the facts in issue which there is evidence to support.” (p. 190.)
Here there was testimony which warranted the court in submitting the theory of the plaintiff that the child, after starting, proceeded along the course without stopping and must have been in the view of the motorman some time before the car collided with him. The court did not trench upon the province of the jury, but stated that if certain facts were proven certain rules of law would apply. The court may not instruct upon a hypothesis where there is no evidence tending to support it, but in this case there was testimony tending to establish the theory of the plaintiff, and whether the theory was proven and the fact ’existed was left to the decision of the jury. In other instructions the court stated the duties of a motorman to keep a lookout for persons, and especially children, that might be on or in dangerous proximity to the track and left the disputed questions for the determination of the jury. Testimony was given as to when the child was last seen in the house, the distance from the house to the street and from there to the tracks. The mother testified that after nursing and releasing the child she attended to duties that would occupy a period of about three minutes, after which
The principal contention on this appeal is that the court erred in not setting aside the answer given by the jury to question No. 8. The answer to question No. 7 was set aside on the motion of the defendant, and' it is contended that the striking out of that answer left no basis for the eighth finding of fact. These questions and answers are as follow:
“Q. 7. What distance south of the intersection of Lincoln Avenue and Kennedy Avenue, do you find from the evidence, the motorman of car No. 108 on October 10, 1914, had he been looking ahead, could have seen plaintiff between the curb and the east rail, as said car approached the intersection of said streets? Answer. 300 feet.
“Q. 8. Do you find from the evidence, that on October 10, 1914, the motorman of defendant’s car No. 108 in the exercise of ordinary care, could have seen and stopped said car before it struck plaintiff? Answer. Yes.”
If the finding set aside inheres in the verdict or nullifies other special findings upon which the verdict is based there is ground for defendant’s contention. (Goff v. Goff, 98 Kan. 201, 158 Pac. 26.) We think the verdict was not based upon the seventh
There is a further contention that the finding to the effect that the motorman’s attention was not attracted to other objects at the side of the street nor from directly in front of his car after the passenger alighted is not supported by the evidence. He did testify that he was looking directly forward after the passenger alighted, and as the car was moving across the intersection of the street, but although not so direct as his, there was testimony and some .circumstances which tended to show the contrary and to uphold the finding made by the jury.
“A court or jury is not required to believe a witness or accept his statements as conclusive merely because there is no direct evidence contradicting his statements.” (Cobe v. Coughlin, 83 Kan. 522, syl. ¶ 2, 112 Pac. 115.)
We find no substantial error in the proceedings and therefore the judgment of the district court is affirmed.