Atchison, Topeka & Santa Fe Railway Co. v. Baker

Citations

• 79 Kan. 183
• 98 P. 804
• 1908 Kan. LEXIS 208

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Personal Injuries—Pedestrian on a Railroad Track—Contributory Negligence—Wanton Negligence of Defendant. In an action to recover damages on account of an injury to a pedestrian resulting from a locomotive being driven along the public street of a city at an unlawful and dangerous rate of speed, with no signal being given of its approach and with no outlook being kept, the misconduct of those in charge of it may amount to such recklessness and wantonness as to cut off the defense of contributory negligence, although such employees did not know of the presence of the person injured, if to their knowledge the extent to which the street was used made an injury so probable that they must be deemed to have realized its imminence and to have refrained from taking steps to prevent it because they were indifferent whether it occurred or not.</p> <p>2. - Wanton Negligence—Knowledge of Plaintiff’s Peril. In the trial of such an action an instruction that “wanton negligence is the failure of one charged with a duty to exercise an honest effort in the employment of all reasonable means to prevent a serious injury” is insufficient as a definition of conduct that would authorize a recovery regardless of contributory negligence. If the employees in charge of the engine did not know of the presence of the person injured it is essential that the jury be told what condition will supply the lack of actual knowledge.</p> <p>S. Evidence—City Ordinance—Proof of Publication. Inasmuch as the statute requires an ordinance to be published before it takes effect, and provides that to its entry in the ordinance book shall be appended a note stating the date of its publication, no other provision being made for preserving evidence of the fact of publication, if no notation with regard thereto is found in the proper place the ordinance is not admissible in evidence without other proof that it has been published.</p>