Marple v. Topeka Railway Co.

The opinion of the court was delivered by Benson, J.: The contention of the defendant is that the plaintiff is barred from a recovery by the contributory negligence of the deceased. This claim was presented in a demurrer to the evidence, in requests for instructions, and otherwise. The argument is that if the deceased looked he must have seen the approaching car in time to have averted injury, and was negligent because he did not stop, and that if he failed to look he was equally negligent. (Young v. Railway Co., 57 Kan. 144, 45 Pac. 583.) If it clearly appears that he was thus negligent the verdict can not be sustained; if it does not so clearly appear, the question was for the jury. The deceased may have seen the car when he stepped over the curb, and before the south-bound car ■ obstructed his view, but whether he did depends upon his vigilance, the distance from him to the car, and on the rate of speed with which it was running. Conceding, however, that he did at that time see, or might have seen' it, he [702] was not absolutely bound to stop there. He might properly go on to a point near the track, in any event, and if there the .distance and apparent rate of speed were such that a prudent person might attempt to cross, he would not be chargeable with negligence in doing so. The all-important question relates to his conduct after he had passed in the rear of the southbound car and reached the space between the tracks. There that car could not interfere with his view, which was then unobstructed, as the jury found. If he then saw the on-coming north-bound car, or in the exercise of ordinary eare ought to have seen it, so near and apparently running with such speed as to make the attempt to cross in front of it dangerous in the judgment of a person of ordinary prudence in that situation, then he was negligent, and there should be no recovery for resulting injuries. Seeing the car, however, would not as a matter of law preclude his going ,on his way, provided it was so far away and its apparent speed was such that a person of reasonable prudence would have proceeded as he did. “If, in view of his distance from the car, the rate of speed of its approach, and all other circumstances of the event, a reasonably prudent man would accept the hazard and undertake to cross, a traveler may do so, and the propriety of his conduct is ordinarily a question for the jury.” (Railroad Co. v. Gallagher, 68 Kan. 424, syl: ¶ 2, 75 Pac. 469.) Inquiry must be made, then, concerning the probable distance of the car from the deceased when he saw or ought to have seen it, at the point where he then was, near to or between the tracks. A witness for the defendant who saw the whole transaction testified that when Marple was at the east rail of the west track the north-bound car was fifty or sixty feet from the crossing where he was killed. If the car was running within the speed limit of twelve miles' an hour, and the defendant was proceeding in an ordinary walk of, say, three [703] miles an hour, then while the car was moving sixty feet he ought to have walked fifteen feet, even without quickening his steps, which would have taken him across the track in safety. That he did not have time to do so indicates what the observation of witnesses, the effect of the impact, and the distance the car ran before it could be stopped, appear to prove, viz., that the car was running at a much higher speed. It must be remembered too that Marple from his point of view could only see the front of the car, and presumably had no adequate means of estimating its speed. It is not unfair to the defendant to say that he had a right, in the absence of evidence to the contrary, to believe that the car was running within the limit of speed allowed by the ordinance. It is true that the witness who testified that the car was fifty or sixty feet away may have been mistaken, and the car may have been at a greater or less distance from the crossing. The whole situation was observed from different points by different people, and it was for the jury to determine whether the caías seen by the deceased appeared to be at such a distance that, considering the speed with which he might rightfully believe it to be running, he should in the exercise of ordinary prudence make the attempt. The court can not declare as matter of law that it is negligent to pass over a public crossing, in a street where cars usually stop, in front of an approaching street car, unless its proximity, its speed as it appears to the pedestrian, the signal, if any, and other circumstances, are such that no other reasonable conclusion can be drawn. . “The mere fact that a traveler can see an approaching car, by which he is afterwards struck, does not in itself establish his contributory negligence. It must not only be approaching, but must be in such close proximity that, taking into account the reasonable rate of speed for such places and present conditions, or apparent rate of speed at which the car is traveling, a reasonably prudent man would not attempt to cross. [704] . . . The care that is required of the pedestrian at a particular crossing can only be properly measured by taking into consideration the care he has a right to expect will be exercised by those managing a street car along the street he is about to cross. Whether he has a right to expect that the cars will be going at a slow rate of speed, that they will be under control, that they will give the proper signals of alarm to warn him of their approach — all should be considered in determining what is reasonably required of him in making such crossing.” (Saylor v. Union Traction Co., 40 Ind. App. 381, 387, 388, 81 N. E. 94.) The duty of a pedestrian crossing street-car tracks has been stated thus: “Prudence doubtless requires one about to cross ¿ railroad track to use his eyes to observe any approaching car within his vision. But, as has been shown, prudence does not require one crossing the track of a street railway to extend his observation to the whole line of track within his vision, but only to such distance as, assuming the required care in their management, approaching cars would imperil his crossing.” (Newark Passenger Ry. Co. v. Block, 55 N. J. Law, 605, 614, 27 Atl. 1067.) There is nothing in the finding of the jury nor in the evidence, as we understand it, which clearly determines that Marple did not in fact observe this duty. What, the distance was to the car when, as we may presume, he saw it is left in doubt by the evidence. The rate of speed, although high, was not precisely determined. In this connection it may be useful to refer to a finding of the jury, as follows: “Ques. Had the deceased given attention while crossing Kansas avenue, and looked for the car coming from the south, could he not have seen it in time to have stopped and avoided the injury? Ans. If the speed of the car had complied with the ordinance governing speed, he could.” It is only where contributory negligence is conclusively shown beyond cavil or dispute, leaving no room for differences of opinion, that it is held as a matter of [705] law to bar a recovery. (Beaver v. A. T. & S. F. Rld. Co., 56 Kan. 514, 43 Pac. 1136.) If that question is left in doubt it must be submitted to a jury. (Westine v. Railway Co., 84 Kan. 213, 114 Pac. 219.) HEADNOTE BY THE REPORTER. 1. Instructions — Comparative Negligence. The doctrine of comparative negligence does not obtain in the courts of this state. {Railroad Co. v. Henr.y, 57 Kan. 154, 45 Pac. 576.) 2. - Concurrent Negligence — Erroneous Instructions. Instructions relating to the concurrent negligence of the deceased and the railroad company examined and held to be erroneous. The rule stated in Dyerson v. Railroad Co., 74 Kan. 528, 87 Pac. 680, is followed and applied. The judgment is affirmed.