Juznik v. Kansas City Southern Railway Co.

Citations

• 109 Kan. 359
• 199 P. 90
• 1921 Kan. LEXIS 142

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Defective Railroad Crossing — Stalled Automobile — Collision witih Train — Contributory Negligence — Issues for Jury. A crossing of defendant’s railroad was in a defective condition. Without knowledge of its condition the plaintiff drove his automobile upon it, and when the front wheels dropped into a depression and struck the further rail, the engine was killed, and he was thrown against the steering wheel and wind shield with such force as to partially disable him for a period of thirty seconds. Before he could extricate himself defendant’s freight train, then engaged in switching operations, was backed upon him, crushing his car and injuring him. Whether he was in the exercise of reasonable care when he undertook to cross the track was a fair question of fact for the jury, and whether the train- . men, who knew the conditions of the crossing and could have seen the peril of plaintiff and stopped the train before striking and injuring him, were guilty of negligence, was also a jury question; and it is held that the testimony was sufficient to uphold the findings made in favor of plaintiff.</p> <p>2. Same — Allegations of Petition — Instruction as to “Last Clear Chance.” Where the plaintiff in his petition set forth the circumstances under which the collision occurred, and defendant alleged that plaintiff’s injuries were the result of his contributory negligence, a charge which the plaintiff denied, and proof was offered tending to show that the train was backed upon plaintiff after those operating it saw his helpless plight on the crossing, the court was warranted in instructing the jury as to the doctrine of the last clear chance, although the plaintiff had not stated in words in his petition that he was invoking that doctrine, and although he had not admitted that he was negligent in • driving upon the crossing.</p> <p>3. Same — Instructions. Instructions examined, and held to be free from prejudicial error.</p> <