Missouri Pacific Railway Co. v. Bentley

Citations

• 78 Kan. 221
• 93 P. 150
• 1908 Kan. LEXIS 42

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Demurrer — Evidence — Immaterial Error. Error in overruling a demurrer to evidence is of no avail where the defendant, instead of standing upon the demurrer, offers proof which supplies the deficiencies of plaintiff’s evidence.</p> <p>2. Personal Injuries — Employee—Contributory Negligence — • Question for the Jury. A track-repairer who omits to look and listen for approaching trains while engaged in the line of his duty at work on the track is not necessarily guilty of contributory negligence as a matter of law; whether such omission constitutes negligence is ordinarily for the jury to determine, under all the circumstances.</p> <p>8. - “Last Clear Chance” — Instructions — Immaterial Error. In an action for damages for the death of a railroad employee who was run over by an engine while at work on the track, where there is no evidence to show whether he looked and listened, an instruction that if the employees in charge of the engine could by the exercise of reasonable diligence have seen the deceased on the track in sufficient time to stop the engine, and thus avoid the injury, plaintiff would be entitled to recover, notwithstanding the deceased was negligent in failing to see the approach of the engine, is erroneous. In view of the other instructions as to contributory negligence, and the special findings of the jury, the giving of such an instruction in this case is held not to have been prejudicial error.</p> <p>4. - Contributory Negligence — Instructions — Immaterial Error. An instruction which leaves the impression upon the jury that the defense of contributory negligence must fail unless established by defendant’s own testimony is erroneous. An instruction open to this objection held not prejudicial for reasons stated in the opinion.</p> <p>SYLLABUS BY THE COURT.</p> <p>Personal Injuries — Contributory Negligence —■ Erroneous Instruction. The erroneous instruction respecting contributory negligence referred to in the third