Kessler v. Davis

Citations

• 111 Kan. 515
• 207 P. 799
• 1922 Kan. LEXIS 286

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Railroad Crossing — Certain Special Findings Unsupported by Evidence. In an action against the railroad management because of an automobile being run into at a street crossing it is held that the evidence was sufficient to sustain findings of negligence in causing a train to approach a station and cross a street less than a block from it at too great speed, and in failing to give proper- signals, but not to sustain findings that the collision was due to defects Jn the crossing or to unnecessary obstructions to vision on the right of way.</p> <p>2. Same — Whether Driver of Auto and Plaintiff Were Engaged in Common Enterprise — Question for Jury. The evidence is held not to show conclusively that the plaintiff and the driver of the automobile were engaged in a common enterprise in such sense as to render the former chargeable with the negligence of the latter, that question, in the circumstances shown, being one of fact to be submitted to the jury.</p> <p>3. Same — Contributory Negligence of Passenger in Automobile. Where the driver of an automobile and a person accompanying him are not engaged in a common enterprise and the situation is such that due diligence requires the driver to stop before attempting to cross a railroad track to assure himself that no train is approaching at a dangerous distance, the person accompanying him is not negligent as a matter of law in failing to see that such stop is made.</p> <p>4. Same — Contributory Negligence. The evidence is held not to show the plaintiff to have been personally guilty of contributory negligence as a matter of law.</p> <p>5. Same — Verdict—Finding in Conflict with Evidence. A verdict for the plaintiff is set aside because it is necessarily founded on a mere estimate of a distance at which an approaching train could be seen from a certain point, which is in conflict with evidence based on actual measurements that are not otherwse contradicted.</p> <p>6. Same. Severa