Cook v. Leavenworth Terminal Railway & Bridge Co.

Citations

• 101 Kan. 103
• 165 P. 803
• 1917 Kan. LEXIS 28

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Public Toll Bridge — Duty Toward a Drunken Pedestrian — Instructions. Instructions defining the duty of a public toll bridge toward a drunken pedestrian examined, and held favorable to plaintiff.</p> <p>2. Same. • A public-service corporation owes no higher duty to a drunken patron than to a sober one, unless it knows or has reason to believe that such patron is so much incapacitated with intoxicants that he can not take care of himself.</p> <p>3. Same — Train Approaching — Alloiving Pedestrians on Bridge — Evidence — Custom—No Previous Accidents. Where a plaintiff who is injured while crossing a toll bridge by being struck by a passing train bases his charge of negligence against the bridge company on the ground that custom and reasonable care required the defendant not to allow pedestrians on the bridge while trains were crossing it, it was competent for the defendant to prove that there was no such custom, that there was no danger to persons exercising ordinary prudence in passing trains on the bridge, and that hundreds of people had met and passed trains on the bridge daily for twenty years, and that no previous accidents had been occasioned thereby.</p> <p>4. Same — Evidence on Issue of Custom. Under an issue of custom and a question as to the requisite requirements of reasonable care, negative evidence which does not tend to raise collateral or impertinent issues is admissible under the rules and limitations announced in Field v. Davis, 27 Kan. 400; City of Topeka v. Sherwood, 39 Kan. 690, 18 Pac. 933; Cunningham v. Clay Township, 69 Kan. 373, 76 Pac. 907.</p> <p>5. Appeal — Excluded Evidence Not in Record — Not Reviewable. Rule followed that excluded evidence which is not brought on the record in conformity with section 307 of the civil code can not be considered on appeal.</p> <p>6. - Evidence — Photographs. Where no prejudice is disclosed, a ruling that photographs offered in evidence might be admitted “for what they are