St. Louis & San Francisco Railroad v. Brock

Citations

• 69 Kan. 448
• 77 P. 86

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Contributory Negligence—Choice of Ways at Traveler's Risk—Exception Stated. There is a general rule that when two ways are open to a person, one of which is obviously safe and the other plainly dangerous, and he voluntarily chooses the latter, he will ordinarily do so at his peril; but if one be placed in peril by the negligence of another and through consequent fear and bewilderment err in judgment and make an injudicious choice of a means of escape, contributory negligence cannot be ascribed to him as a matter of law.</p> <p>2. Railroads—Injury at Crossing—Value of Positive and Negative Evidence of Whistling at Crossing Distinguished. In weighing conflicting evidence of whether the whistle of a locomotive approaching a crossing was sounded, the law gives a preference to positive over negative evidence, and where there is positive testimony by . those in charge of the train that the whistle was sounded, and negative testimony of those within hearing that they did not hear it, the court should, upon request, call the attention of the jury to the relative value of the two classes of testimony.</p>