Altwein v. Metropolitan Street Railway Co.

Citations

• 86 Kan. 220
• 120 P. 550
• 1912 Kan. LEXIS 262

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Personal Injuries — Petition — Evidence — Variance. In the petition herein it is alleged that plaintiff was-riding in defendant’s street car; that the car came to a standstill at a crossing; that as she was in the act of alight.ing, the car was negligently and violently started forward by the motorman with such force as to throw her off the car and down upon the pavement; held, if it appears by the evidence that the car was not brought to a standstill -but was still slowly moving at the time of the accident, this does not. necessarily- defeat the right of recovery.</p> <p>2. - Same. In such case, to sustain the action, the evidence as a whole must show that the injury occurred substantially as alleged and that the negligent act of defendant’s employee was the proximate cause of the injury.</p> <p>3.-General Denial — Contributory Negligence. In such a case, where the answer is a general denial only, contributory negligence not being pleaded, the defendant may introduce any evidence which goes to controvert the facts which the plaintiff is bound to establish in order to sustain the action.</p> <p>4. —:- Same. Under such pleading, the plaintiff* in order to. sustain the action, is not bound to prove that she did no act or that she did not omit to do anything which contributed to her injury. If, however, the plaintiff’s evidence does show that she negligently did something or negligently failed to exercise reasonable care for her .own safety, which act or omission was the proximate cause of her injury, she may not recover therefor.</p>