Bradshaw v. Payne

Citations

• 111 Kan. 475
• 207 P. 802
• 1922 Kan. LEXIS 281

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Kicking Uncontrolled Freight Car Over Street Crossing — Collision with Automobile. In an action by parents against a railroad company to recover for the death of a minor son who was riding as a guest of the driver of an automobile which was run into at a street crossing by a freight car, it is held that the evidence sustained a finding of negligence in kicking the freight car over a public street crossing uncontrolled and without a brakeman on top of the car to stop it with the hand brake if necessary.</p> <p>2. Same — Deceased and Driver of Auto Not Engaged in a Common Enterprise. The evidence considered and held sufficient to sustain a finding that the deceased, who was a minor about seventeen years of age, and the driver of the automobile, were not engaged in a common enterprise so as to render the former chargeable with the negligence of the latter;_the question being one of fact to be submitted to the jury.</p> <p>3. Same — No Contributory Negligence of Quest of Driver of Automobile. Assuming that the driver of the automobile failed to exercise due diligence to stop before attempting to cross the railroad track in order to discover whether there was a car or train approaching, the deceased being a mere guest of the driver -fras not, as a matter of law, negligent in failing to observe the approach of the car or failing to insist that the automobile be stopped in order to ascertain whether the car was approaching.</p> <p>4. Same — Contributory Negligence — Age, Intelligence and Capacity of Deceased to be Considered. In such a case it was not error for the court to instruct that in determining the question of contributory negligence the jury must take into consideration the age, intelligence, and capacity of the deceased, nor was it error to add this qualification to the statement in other instructions of the rule respecting contributory negligence.</p> <p>5. Same — Ordinary Care Required in Kicking a Freight Car Up