King v. Missouri Pacific Railway Co.

Citations

• 97 Kan. 769
• 156 P. 728
• 1916 Kan. LEXIS 395

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Wrongful Death — Collision between Switch Engines at Crossing■ — ■ Contributory Negligence for Jury. The testimony relating to a collision between two switch engines at a crossing where the line of one railroad intersected that of another, and which resulted in the death of an engineer in charge of an engine, examined, and it is held that it tends to support the finding of the jury that the collision and resulting death were occasioned by the negligence of the defendant, and that the deceased, who first approached the crossing and gave the required signals and had the right of way, can not be held to be guilty of contributory negligence, although he proceeded to the crossing after he was told by his fireman that the latter did not believe those in charge of the defendant’s engine were going to stop and give the signals for the crossing, as they were required to do.</p> <p>2. Same — Contributory Negligence — For Determination of Jury. The deceased, who had reached the crossing first and given the required signals when the defendant’s engine had not yet reached the stopping board, had a right to assume that those in charge of defendant’s engine would comply with the rules, stop within the prescribed limits, and yield the right of way to deceased, and as they did not stop and give the required signals, the question whether the deceased exercised due care and diligence thereafter to avoid a collision was one for the determination of the jury.</p> <p>3. Same — Statements of Enginemen — Competent Evidence. Expressions made by those in charge of defendant’s engine immediately after the collision, relating to the care exercised by them in approaching the crossing, are deemed to have been instinctive and spontaneous, and testimony thereof to be admissible as res gestie.</p>