McMahon v. Joplin & Pittsburg Railway Co.

Citations

• 96 Kan. 271
• 150 P. 566
• 1915 Kan. LEXIS 365

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Crossing Railroad Track — Contributory Negligence. Where a traveler in attempting to drive across a railroad track becomes involved in such a situation that he can neither get over it nor turn back, the railroad company is liable, notwithstanding any prior negligence on his part, for the consequences of a collision which its employees could have averted by any reasonable effort after the time when they ought to have discovered his predicament.</p> <p>2. Same — Judgment on Special Findings — Disapproved. Where a judgment for the defendant on the special findings (the general verdict being for the plaintiff) is required by the law as declared in the instructions, but not by the law as it is determined to be by this court, such judgment will not necessarily be approved on appeal, notwithstanding the plaintiff, not having filed a motion for a new trial, can not assign error with respect to the instructions.</p> <p>3. Same — When New Trial Should be Allowed. A new trial should be allowed to a defendant against whom a verdict has been rendered, when the special findings would require a judgment in his favor, except for the possible existence of facts, of which there is evidence, which are not thereby negatived, and which are not covered by the general verdict because no issue regarding them was submitted to the jury.</p>