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

Citations

• 90 Kan. 409
• 133 P. 871
• 1913 Kan. LEXIS 229

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Death — At Street Crossing — Evidence — Negligence—Contributory Negligence. The plaintiff seeks a recovery for the death of her husband, caused by the negligent operations of • a train at a street crossing. The evidence and findings are reviewed, and it is held, (1) that there was sufficient evidence to warrant the finding of negligence; (2) that the question of contributory negligence was one of fact for the jury.</p> <p>2. -- Evidence — Habits of Decedent in Crossing Tracks. The plaintiff was called as 'a witness by the defendant and testified that her husband was familiar with the crossing, and that she had often been over it with him. On cross-examination she was allowed to testify that he always drove carefully, watching for dangers, and at night stopped to look and listen. It is held that the testimony, if incompetent, was still not prejudicial under the findings.</p> <p>3. -. Instructions — Presumptions that Decedent “Stopped, Looked and Listened.” An instruction was given, stating in substance that in the absence of any evidence on the subject the jury were authorized to presume that from natural instinct to protect his person and preserve his life the deceased looked and listened for approaching trains before venturing upon the crossing, and if his situation was such as to require him to stop, that he did so. In connection with other instructions defining the duty of the deceased to look and listen, and stating the circumstances in which he was required to stop, the foregoing is approved.</p>