Wichita Railroad & Light v. Cummings , 72 Kan. 694 ( 1906 )

Per Curiam:

E. E. Cummings, while riding upon a street-car in the city of Wichita, thrust his head out of the side of the car, which brought it in contact with one of the poles that supported the electric wires overhead. ■ The defendant company prosecutes this proceeding to reverse a judgment obtained by him for injuries resulting therefrom.

The car upon which Cummings was riding was a summer car. ' It was open on both sides, except that on the side next to the poles which supported the overhead wires there was a guard-rail, about level with the back of the seats. The seats were reversible, except those at the ends of the car. The plaintiff occupied the seat in the front of the car, with his back to the motor-man. Facing Cummings, and two seats from him, was a Miss Torrey, an acquaintance. While the car was moving she indicated that she wished to speak to plaintiff. For the purpose of ascertaining her wishes the plaintiff arose from his seat and put his head and a portion of his body outside of the car, over the guard-rail on the side next to the poles, and leaned toward her. While in "this posture the back of his head collided with a pole, and injury resulted. This pole was seventeen inches from the ide of the car; and, in view of the special findings of he jury, the question of the negligence of the company m placing the pole in too close proximity to the side of fhe car becomes unimportant.

If the plaintiff’s contributory negligence was the proximate, although not the only, cause of his injury, he cannot recover. Upon this question the jury, among others, made the following special findings:

“(2) Ques. What was the distance in inches between the side of the car upon which plaintiff was riding and the pole between the tracks which came in contact with the plaintiff? Ans. Seventeen inches.

“(3) Q. What was the distance from where plaintiff was sitting to the person with whom he was trying to communicate? A. About eight feet.

“ (4) Q. Could not the plaintiff have as easily •communicated with the person he desired to speak to •on the inside of the car as-on the outside? A. Yes.”

“(6) Q. Was there any necessity for the plaintiff to put his head or body outside of the car on the side <on which he was sitting? A. No.”

“(35) Q. Was there not an aisle running through the center of this car from one end to the other? A. Yes.”

“(37) Q. Was there anything to prevent Cummings from getting up in the aisle and going and ■speaking to the person he wished to speak with? A. No.”

“(44) Q. Did not the plaintiff’s head hit this pole by reason of his rising up out of the said seat and projecting a part of his body outside of the car? A. Yes.”

“(46) Q. Was not the plaintiff injured because of his rising up out of his seat and projecting his shoulders outside of the car? A. Yes.”

“(50) Q. Would an ordinarily prudent man, riding in the car seated as plaintiff was, have put his bead out of the car far enough to come in contact with the pole between the tracks? A. Not under ordinary circumstances.”

These findings are so conclusive of plaintiff’s contributory negligence as to make comment useless.

The judgment is reversed and the cause remanded, with instructions to render judgment for the defendant on the special findings.