Eames v. Clark

Citations

• 104 Kan. 65
• 177 P. 540
• 1919 Kan. LEXIS 183

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Automobile — Negligent Driving — Death of Boy — Competent Rebuttal Evidence. In an action against the driver of an automobile for running into an eight-year-old boy and causing his death, the defendant was charged with negligence in going too /fast. The plaintiff in making his case in chief introduced evidence that the car was going twenty-five to thirty miles an hour. The defendant testified that he was going from six to eight miles an hour when the boy ran in front , of the car; that he put on the brake and the car skidded about ten feet; that when he saw that he had struck the boy he released the brake, and the machine rolled about twenty feet further, and was stopped by a new application thereof. In rebuttal, the plaintiff Qffered to prove by an expert witness, in answer to two hypothetical questions, that under the circumstances stated by the defendant the first application of the brake would have stopped the car within two feet . if it had been going but six to eight miles an hour, and that the distance traveled before stopping indicated an initial speed of thirty to forty miles an hour. Held, that such showing was proper in rebuttal, but that one of the questions included a material assumption not warranted by the evidence.</p> <p>2. Same — Duty of Driver in Passing Pedestrian on Highway. The statutory provision (now repealed) that “upon approaching . . . another vehicle or an animal or person outside of any village or city, the person operating a motor vehicle shall reduce the speed of such vehicle to a rate not exceeding eight miles an hour and shall not exceed such speed until entirely past such . . . vehicle, animal or person” (Gen. Stat. ,1915, § 506) made it,the duty of the driver of an automobille in passing a pedestrian in the highway to reduce his speed to eight miles an hour.</p> <p>3. SAME — Child Walking in Highway — Erroneous Instruction. The refusal of an instruction relative to the care required of a child wa