Tempfer v. Joplin & Pittsburg Railway Co.

Citations

• 89 Kan. 374
• 131 P. 592
• 1913 Kan. LEXIS 74

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Sitting on Railway Track — Unconscious — Wantonness of Motorman. One who carelessly sits down upon the ties of an interurban electric railway track to await the arrival of a car is not continuously and concurrently negligent by reason of becoming unconscious from sleep or coma and thereby unable to avoid injury from a car ' wantonly run upon him.</p> <p>2. - Same. A motorman who sees and realizes the helpless condition and peril of such person in time to stop his car and avoid injuring him, but recklessly runs it upon and over him without attempting to stop until almost upon him, is guilty or wanton negligence, rendering his employer liable for such injury, although he does not run over him willfully and intentionally.</p> <p>3. Contributory Negligence — Concurrent Negligence — Proper Instructions. The company pleaded contributory negligence in sitting down and remaining upon the tracks knowing that a car would soon pass, and the court having instructed correctly as to concurrent negligence and last clear chance, charged that if the deceased was guilty of carelessness continuing down to the time of the negligence of the defendant, if any, which contributed to the injury, there could be no recovery unless the defendant came within the exception to the rule precluding the defense of contributory negligence. Held, properly applicable to the defense pleaded.</p>