McClain v. Chicago, Rock Island & Pacific Railway Co.

Citations

• 89 Kan. 24
• 130 P. 646
• 1913 Kan. LEXIS 6

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. New Trial — No Motion — Errors Waived. Ordinarily any ruling or ground for which a new trial may be granted is waived by the neglect of a party to ask for a new trial.</p> <p>2-. Motion — For Judgment on Special Findings — When Sustained. Where no motion for a new trial is made, but instead a party moves for judgment on the special findings, notwithstanding the general verdict, the question is whether, after indulging every reasonable inference in favor of the general verdict, the special findings returned by the jury are so antagonistic to it as to be absolutely irreconcilable with it, and so complete in themselves as to warrant the entry of judgment thereon.</p> <p>8. Contributory Negligence- — Street Crossing — Gates Not Lowered — Reasonable Care. Where gates have been erected and maintained by a railroad company where its road crosses a public street in a city, and which are to be lowered by a gateman when' trains are passing over the street, the fact that such gates are up when a person approaches the crossing is some assurance to him that he can safely proceed to cross, and while if will not excuse him for a failure to exercise reasonable care for' his safety, he is not required to exercise the same vigilance as he would be at a crossing where gates had not been erected and maintained.</p> <p>4. - Same. A traveler approached a railway crossing over a much traveled street in a populous city where gates had been built and maintained, and finding them open proceeded to cross the street without looking up the track, where a passenger train was approaching from the north at an excessive and unlawful rate of.speed, and which he could have seen if he had looked. After starting across the tracks a freight train came over the crossing from the other direction and caused him to stop between the two tracks in a space eight and one-half feet wide. After standing there about fifteen seconds he was struck by the engine of the passenger tr