Metropolitan Street-Railway Co. v. Rouch

Citations

• 66 Kan. 195
• 71 P. 257
• 1903 Kan. LEXIS 28

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Personal Injuries — Street-railway Crossing — Reciprocal Rights. In an action for damages for an injury occasioned by a ■ collision between a street-car and plaintiff's buggy while he was driving on, or dangerously near, the street-car track, an instruction to the jury to the effect that the rights of the plaintiff as a traveler upon that portion of the street occupied by the railway-track and the rights of the street-car company were' equal should have been qualified so as to include the duty of the traveler to turn aside to permit an approaching car to pass.</p> <p>2. -- Contributory Negligence — Contradictory Instruction. In such action an instruction that, even if the jury should find from the evidence that the plaintiff was negligent in having his buggy on or near the track of the defendant so that it was struck by a car, still plaintiff would be entitled to recover if they should further find that the injury was caused entirely by the negligence of the defendant in failing to provide a headlight sufficient to enable the motorman to discover an obstruction in time to stop the car and prevent injury, and that the injury to the plaintiff would not have happened, notwithstanding the negligence of plaintiff, if such headlight had been on the car, is self-contradictory, and, therefore, erroneous in that it postulates negligence in the plaintiff proximately causative of, and directly contributive to, the collision and injury, in the presence of which no negligent act of the defendant could be a sole or entire cause.</p> <p>3. -Erroneous Instruction. The instruction mentioned in paragraph 2 above was further erroneous in that it permitted the jury to disregard negligence on the part of the plaintiff proximately causative of, and directly contributiva to, his injury. Such negligence is sufficient to defeat recovery.</p>