"Q. 2. How fast was it going at that time?, the street would be at a distance in the rear A. Four miles per hour. of his receding car. "Q. 3. Where, with reference to the south line of Eighth avenue, did the plaintiff get off? A. South of the center of Eighth street. "Q. 4. Did plaintiff run after getting off? A. No. * "Q. 6. Did plaintiff stop or look and listen to see if a car was approaching from the north before going on west track? A. Yes. "Q. 7. Did, plaintiff see the south-bound car before he got near enough for it to strike him? A. No. * "Q. 9. Could the motorman have stopped the south-bound car after seeing plaintiff in time to avoid the accident? A. No. The court gave the jury the following instruction: "The jury are instructed that the speed at which the defendant's south-bound car was running when it struck the plaintiff is to be considered in the light of all the circumstances. The speed that might be negligent under one set of conditions might not be negligence in another. A rate of speed greater than provided by the ordinances of the city might not be negligence under certain circumstances and a lower rate of speed than provided by the ordinances might be negligence under other circumstances. In this connection you should take into consid "Q. 10. Was there anything at or near Eighth avenue to apprise the motorman of the south-eration the approaching car from the opposite bound car of danger? A. Yes. "Q. 11. If you answer the last question in the affirmative, state what it was? A. Northbound street car. 串 "Q. 13. Where, with reference to the south line of Eighth avenue did plaintiff and southbound car come into contact? A. Center of Eighth street." The court set aside the sixth finding so far as it indicated that the plaintiff stopped before going on the west track. The negligence charged in the petition consisted in running the south-bound car at an excessive rate of speed without giving warning of its approach and without having it under control when passing the north-bound car which had just discharged the plaintiff at a street intersection. Motions were made for judgment on the special findings and for a new trial, which were overruled. It is difficult to perceive in what particular the motorneer of the south-bound car was negligent toward the plaintiff, and breach of duty to use due care toward the aggrieved person is indispensable to recovery. Express Co. v. Everest, 72 Kan. 517, 522, 83 Pac. 817. The jury did not find and could not find from the evidence that the motorneer of the southbound car was required to sound the gong, run at a moderate rate of speed, or have his car under control because of the amount of traffic or the number of pedestrians at the Eighth street crossing when he approached it. There was no dispute that he could see whatever there was to see as the two cars approached the crossing from opposite sides, and the jury limited the appearance of danger to the presence of the north-bound car alone. This car, however, was south of the center of the street when the plaintiff alighted. It had not reached the place where it should stop if passengers were to be discharged, and it was still moving at the rate of 4 miles per hour. The plaintiff was struck in the center of the street, substantially 20 feet south of the place where he should have alighted. The motorneer of the south-bound car had the right to believe, from the practice and from the motion of the north-bound car, that if passengers on that car were to be discharged at all, they would not be discharged south of the center of the street. If this were done, he would be safely beyond the place, and direction, whether or not such approaching car stopped at the crossing where it was in the habit of permitting passengers to alight and every fact and circumstance surrounding the parties at the time that the south-bound car struck the plaintiff.” This instruction fairly stated the law. In the case of Express Co. v. Everest, supra, 72 Kan. 524, 83 Pac. 820, the court said: "In every instance the duty of taking care presupposes knowledge, or its equivalent, of the particular state of facts out of which it arises. There must be prevision of danger and likelihood of injury, for the law imposes responsibility for that only which reasonable prudence can anticipate.' A north-bound car at a point south of the center of Eighth street, and proceeding at a rate of 4 miles per hour, was not a warning to the motorneer of the south-bound car that his car might encounter a passenger alighting from the other car, and furnished no occasion to reduce speed, put the car under control, or sound the gong. The finding of the jury to the contrary shows the view it took of the matter, and vitiates the general verdict. The findings show that the plaintiff did not go directly across the east track, but walked in a northwesterly direction until he was struck. He testified to the same fact. He followed the car from which he alighted for some distance. The two tracks were so close together that when he passed from behind the north-bound car a movement over the space of about one foot placed him in danger. A single step at an ordinary gait from the place where his vision was obscured placed him irretrievably in danger. Unable to see until he was on the very verge of danger, he walked at his usual gait into a place of danger, looking as he walked. Such conduct is irreconcilable with the standard of due care which the law recognizes. Conceding that the rate of speed of the south-bound car ought not to have exceeded 15 miles per hour, the plaintiff was guilty of negligence which contributed to his injury. When he alighted he did not look along the east side of the car to see if a car were approaching from the north on the west track. Not hearing any gong while he was behind the north-bound car, he was called upon to to cross the space between the two tracks. | between the two tracks the plaintiff could He should have allowed the north-bound car to move forward far enough for him to obtain a fair view of the west track or he should have looked north along the space between the two tracks before abandoning his place of safety. Instead of this, his movements projected his body into danger at the moment he gained an opportunity to see. He voluntarily prevented such use of his faculty of sight as the law required, and he was guilty of negligence as a matter of law. have seen a car approaching at a distance of two blocks. The west-bound car, which was moving rapidly, was not that far away or the plaintiff would not have been injured. The important thing was, as in this case, that if the plaintiff had made proper use of her faculty of sight while in a place of safety, she could have remained there, and could have avoided collision with the car which overtook her immediately upon her leaving a place of safety. The plaintiff cites the case of Stuckey v. Dunham, 96 Kan. 427, 151 Pac. 1107. In that case a car was propelled past a standing car which had stopped at the proper place for the discharge of passengers and was discharging its passengers. The plaintiff also cites the case of Marple v. Railway Co., 85 Kan. 699, 118 Pac. 690. That case involv ing car was far enough away and its apparent speed was such that the plaintiff was justified in attempting to cross the track in front of it. That a street car track is a warning of danger, that each track where there are more than one is a warning, that a car may be expected at any time, and that a pedestrian must look and listen before attempting to cross, has been said so many times that a reference to the decided cases is not necessary. The purpose of looking for an on-com-ed the question whether or not an approaching car is to avoid the danger incident to getting in front of it or so near to it as to cause a collision. The time to do this is while the result of observation may be utilized and means and opportunity still exist to avoid a collision. The place to do this is necessarily a place far enough removed from the path of the car that it cannot strike while the observation is being made. If necessary, prudent and careful means besides looking and listening must be employed to ascertain whether or not a car is coming. Burns v. Railway Co., 66 Kan. 188, 71 Pac. 244; Adams v. Railway Co., 93 Kan. 475, 144 Pac. 999. The case of Railway Co. v. Ryan, 69 Kan. 538, 77 Pac. 267, is quite similar with respect to the facts and is identical in principle with the one under decision. In the Ryan Case the double tracks of the street railway ran east and west. The plaintiff alighted at the rear and on the south side of an eastbound car on the south track. She went around the rear end of the car, and was struck by a west-bound car on the north track. As she was passing the west end of the standing car she looked eastward for a car, but could see only 10 or 15 feet toward the east along the north track. Her movements were hurried. Because she did not either wait for the car which obstructed her view to move on or look along the space between the two tracks before going upon the north track the court held she was guilty of contributory negligence. Here the plaintiff did not wait for the car which obstructed his view to move far enough in advance of him to give him a view of the west track, and he did not look along the space between the two tracks before moving across it. Only a part of that space constituted a zone of safety, and the same movement which gave him an opportunity to look carried him into danger. In the Ryan Case mention is made of the fact that by looking along the space The judgment of the district court is reversed, and the cause is remanded, with direction to enter judgment for the defendant. All the Justices concurring. STOCKYARDS STATE BANK v. MER- (Supreme Court of Kansas. Jan. 8, 1916.) (Syllabus by the Court.) PRINCIPAL AND AGENT 132-BILLS AND NOTES-AGENTS-CONTRACTS-LIABILITY OF PRINCIPAL. 500. The cashier of the borrower gave his inA bank loaned another bank the sum of $3,dividual note to the lender, not as consideration for the loan, but for stated reasons making that course advantageous to the borrower. Held, the borrower was under legal obligation to repay the money, although its name did not appear on the note and nothing on the note indicated the borrower's relation to the transaction. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 459, 467-471; Dec. Dig. 132.] Appeal from District Court, Sedgwick County. On petition for rehearing. Rehearing de BURCH, J. The plaintif has filed a petition for a rehearing in which the following claims are made: The plaintiff's theory in the lower court was that the defendant was For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes S attempting to charge the plaintiff as an undisclosed principal upon Brown's note. This defense could not be sustained otherwise than by varying the terms of a promissory note by parol evidence. This is distinctly forbidden by the decision of this court in the case of Insurance Co. v. Martindale, 75 Kan. 142, 88 Pac. 559, 21 L. R. A. (N. S.) 1045, 121 Am. St. Rep. 362, 12 Ann. Cas. 677. The Martindale Case was cited in the plaintiff's original brief. It is sustained by an imposing array of authorities collated in a note appended to the report of the decision in 21 L. R. A. (N. S.) 1045. This court, in its opinion, Bank v. Bank, 96 Kan. 558, 152 Pac. 769, made no reference to the plaintiff's theory, made no reference to the Martindale Case, and made no reference to the authorities sustaining it in the note referred to. The Martindale Case ought to conclude the present controversy in the plaintiff's favor. The court in its former opinion made no reference to the Martindale Case, which was cited in the plaintiff's brief, or to the note mentioned, because it could find nothing in the record making such a reference pertinent, and because the very L. R. A. note mentioned collates authorities which distinguish the controversy in the Martindale Case from the present one. The plaintiff did not frame the defense to the action. The answer stated the defendant's claim, and the defendant did not seek to charge an undisclosed principal or to vary the terms of a promissory note. The note was Brown's note and, prima facie, indicated that he was the borrower. But, as stated in the former opinion, the answer raised the question, who borrowed the money, Brown or the bank of which he was cashier, and the obligation sought to be established was that of the actual borrower to return the money it had borrowed, independent of the security taken for the loan. The plaintiff could not dispose of the defendant's contention by proposing a theory of the answer which the pleading itself did not present. If the plaintiff's theory at the time of the trial was as it is now stated to be, it did not get into the record. The defendant's answer was not attacked by motion or demurrer. No objection to evidence, contained in the abstract or discussed in the brief, raised the question now presented. It was not raised by a demurrer to the defendant's evidence, by any request for an instruction to the jury, or by the motion for judgment notwithstanding the verdict. On the other hand, the plaintiff's requests for instructions were all pertinent to the issue presented by the answer. In its requests for instructions the plaintiff undertook to aid the district court by citations of authority, and the Martindale Case is not among them. In the Martindale Case, Stotler gave his note to Fist for the premium on a life insurance policy. Fist was agent of the in surance company. Fist sold and indorsed the note to Martindale, and thus became liable to Martindale as an indorser. When Martindale sued to recover on the note, he undertook to hold the insurance company as the undisclosed principal for whom the indorser, Fist, acted. The court held that nobody can be charged as an indorser on a negotiable promissory note unless his name appears upon it or unless something on the note indicates that relation, and such is the law. In this case the plaintiff, being a corporation, necessarily acted through an agent, its cashier. But the defendant claimed it made no loan to the agent or for the benefit of an undisclosed principal. It made the loan direct to the plaintiff, who was known and understood to be the actual borrower and to whom the credit was actually extended. The borrower, the plaintiff, gave no written obligation because its cashier wished to conceal from the bank commissioner the method by which the plaintiff's reserve was increased, and the cashier's individual note was taken, not as consideration for the loan, but as collateral security. This case therefore is somewhat similar in fact and is identical in principle with that of Chemical Bank v. Bank of Portage, 156 Ill. 149, 40 N. E. 328, cited in the L. R. A. note to the Martindale Case to which the plaintiff referred. The Portage Bank loaned the Chemical Bank the sum of $5,000. The cashier of the Chemical Bank executed a note for that amount to a third person who indorsed without recourse to the Portage Bank. It was held that the Portage Bank could recover of the Chemical Bank on the common count for money had and received. Another case cited in the same note is that of Van Haagen Soap Co.'s Estate (Third Nat. Bank's Appeal) 141 Pa. St. 214, 21 Atl. 598. This case is reported in full in 12 L. R. A. at page 223. To the report is appended an extended note which begins as follows: "Note.-The One Receiving Credit, the One Responsible for the Debt. "The doctrine seems to be universal that the one to whom and upon whose credit money is loaned or property advanced is liable for the debt regardless of the fact that his name may not appear on the security taken, if such security is regarded by the parties purely as collat eral." If the defendant had been seeking to recover on Brown's note by charging the plaintiff as a maker in fact although undisclosed when the note was signed, the defendant would have been met by the Martindale Case. The distinction having been clearly drawn by the L. R. A. editors between cases like the Martindale Case and cases like this one, it did not seem necessary to duplicate the work in the former opinion when the record furnished no peg upon which to hang a discussion of the subject. The petition for a rehearing is denied. All the Justices concurring. Plaintiff testified that the horses fell at the SIMON V. MISSOURI & KANSAS TELE- instant of the flash, and that the lightning PHONE CO. (No. 19795.) (Syllabus by the Court.) NEGLIGENCE 59-TELEGRAPHS AND TELE PHONES 15 - INJURIES FROM MAINTE NANCE OF WIRE-"PROXIMATE CAUSE." first struck a telephone pole 150 feet from where the animals were and was conveyed to them from the telephone wire. He admitted on cross-examination that this was his conclusion from the circumstances; that immediately after the storm he discovered fresh splinters and pieces of the pole lying on the ground. The defendant maintained a telephone line consisting of one wire supported on poles placed at the side of a public highway close to a hedge. One defense pleaded in the answer was At one place the wire sagged to within 4 feet of the ground. Plaintiff, who was traveling with that the horses were running at large on the a team and wagon, stopped at noon to rest, public highway contrary to the herd law and turned his horses out to graze on the road. which it is admitted was in force in FrankA storm came up, and the horses went to the side of the road close to the hedge for shelter. lin county. The principal contention is that While standing under the wire where it sagged no negligence was shown on the part of dethey were killed by lightning which first struck fendant which was the proximate cause of one of the poles 150 feet distant. The telephone the plaintiff's loss. These defenses were raiswire was not in itself dangerous to persons or animals using the highway for ordinary purposes of travel, and, even though it were held negligence to maintain the wire so close to the ground, it was not the proximate cause of the injury; that required a conjunction of conditions and circumstances of an extraordinary nature which it is not reasonable to say a person of ordinary. prudence and foresight should have anticipated. [Ed. Note. For other cases, see Negligence, Cent. Dig. § 72; Dec. Dig. 59; Telegraphs and Telephones, Cent. Dig. § 9; Dec. Dig. 15. For other definitions, see Words and Phrases, First and Second Series, Proximate Cause.] Appeal from District Court, Montgomery County. Action by J. S. Simon against the Missouri & Kansas Telephone Company. From judgment for plaintiff, defendant appeals. Reversed and remanded, with directions. T. H. Stanford, of Independence, and D. E. Palmer, of Topeka, for appellant. Sullivan Lomax, of Cherryvale, for appellee. PORTER, J. Plaintiff had two horses killed by lightning which he alleged was communicated to them by a telephone wire negligently maintained by defendant in a public highway. He recovered judgment for the value of the horses, and defendant appeals. The plaintiff is an itinerant horse trader. On May 5, 1913, he was traveling with his family in a covered wagon from Cherryvale to the northern part of the state, and, while passing through Franklin county, stopped at the side of a public road for rest and dinner. He had four horses, which he turned out to graze along the highway, having them hobbled to prevent their getting beyond control. At the west side of the public road, and next to a hedge, the defendant maintained a telephone line of one wire which sagged to within about 4 feet of the ground. While plaintiff's horses were grazing at the side of the road a storm came up, and the horses went close to the hedge for shelter. Two of them were standing under the sagging wire, and were killed by a stroke of lightning. ed by demurrers to the petition and to the evidence, and by a motion for a new trial. Wholly apart from the question whether plaintiff's horses were running at large in violation of the statute, we think the judgment cannot be permitted to stand. Manifestly the fact that defendant is a corporation has nothing to do with the question of its liability for the injury. If the wire through which the stroke of lightning was transmitted to the horses had been a private telephone wire maintained at the roadside by a farmer, or had been part of his wire fence along the highway, his liability for plaintiff's loss would be determined upon precisely the same legal principles. Telephone and telegraph wires carry very light volt. age, and can ordinarily be handled with as little danger as a fence wire. Either may furnish, as may water pipes, gas mains, etc., a conductor for lightning; but before the plaintiff can recover he must show some negligence of the defendant which was the proximate cause of his loss. The telephone wire was not in itself dangerous to any person using the highway for ordinary purposes of travel, because it was maintained at the side of the road next the hedge, and, although allowed to sag close to the ground, it interfered in no way with the traveled portion of the highway. But, conceding that it was negligence to maintain the wire so close to the ground, still nothing is more firmly settled in the law of negligence than the principle that to be the proximate cause of an injury the accident or happening of the injury must be a probable or natural consequence of the negligent act. Stated in another way, the negligent act is not the proximate cause, unless, under all the circumstances of the case, the injury or accident is one which might reasonably have been anticipated by a person of ordinary foresight and prudence. "While one is responsible for such consequences of his fault as are natural and probable, and might therefore be foreseen by ordinary forecast, if his fault happened to concur with something extraordinary, and therefore not likely For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes to be foreseen, he will not be answerable for the extraordinary result.' Railway Co. v. Columbia, 65 Kan. 390, 398, 69 Pac. 338, 340. placing it there liable would be to charge it with the duty to foresee all these most uncommon and unlooked-for conditions." 91 Kan. 765, 139 Pac. 417. The telephone wire in the present case was no more dangerous than was the guy wire in that case. Had not the plaintiff turned his horses out to graze on the public road at that particular time and place, had not the storm occurred then, had the horses happened to seek shelter at the opposite side of the road, had not lightning struck when and where it did, the telephone wire would not have harmed the animals. As it occurred, the loss sustained by the plaintiff required the conjunction of conditions and circumstances of an extraordinary nature, which it is unreasonable to say a person of ordinary prudence and foresight should have anticipated. Where the alleged negligence of defendant merely furnishes a condition or gives rise to an occasion by which the injury is made possible, the defendant's negligence is regarded as the remote, and not the proxiate, cause. Railway Co. v. Columbia, supra. The law makes every person liable for such results of his negligence as ought, reasonably to have been foreseen or anticipated by the exercise of ordinary prudence. Two comparatively recent cases illustrate the application of these principles. In Gas Co. v. Carter, 65 Kan, 565, 70 Pac. 635, gas had been negligently allowed to escape into a cellar, and from some unknown cause exploded. It was held that the explosion was a probable and natural consequence of permitting large quantities of a highly explosive agency to The judgment is reversed, and the cause accumulate in a confined place, and the gas remanded, with direction to enter judgment company's negligence in permitting this was for the defendant. All the Justices conheld to be the proximate cause of the acci- |curring. dent without any evidence showing how the gas became ignited. In the Dabney Case (Gas Co. v. Dabney, 79 Kan. 820, 101 Pac. 488) the negligence was in permitting natural gas to escape from a well into the open air in the nighttime. An explosion occurred causing damage, but there was no evidence showing how the gas became ignited. It was said in the opinion that lightning might strike the well and ignite the gas, or some careless person might strike a match near it and cause an explosion, or fire might by other accidental means be brought in connection with the gas, but, in the usual and ordinary course of things, none of these consequences would reasonably be expected to occur, and the negligence in permitting the gas to escape into the open air was held not to be the proximate cause of the explosion. The principle on which the case of Eberhardt v. Telephone Ass'n, 91 Kan. 763, 139 Pac. 416, was decided applies to the case at bar. Plaintiff was injured by being thrown from a wagon when a team of mules ran away and the wagon struck a guy wire which projected diagonally for a distance of four feet into a public highway, but did not extend to that portion of the highway graded and used for travel. Independent of whether the telephone company was negligent in maintaining the guy wire at the side of the road, it was held that this was not the proximate cause of plaintiff's injury. In the opinion it was said: ROWELL V. ROWELL. (No. 19782.)* (Supreme Court of Kansas. Jan. 8, 1916.) (Syllabus by the Court.) 1. DIVORCE 323-MAINTENANCE AND EDUCATION OF CHILDREN. The duty and responsibility of parents for the maintenance and education of minor children are not altered by the rendition of a decree of divorce in which no provision is made for the children, and the obligation of the father therefor is not canceled by the fact that the divorce was granted to him because of the fault of the mother. [Ed. Note.-For other cases, see Divorce, Cent. Dig. § 826; Dec. Dig. 323.] 2. DIVORCE 323-SUPPORT OF CHILD-EXPENDITURES BY DIVORCED WIFE-RECOVERY FROM HUSBAND. In such case, and where the father neglects to provide for the maintenance and care of the minor children, and leaves that burden entirely to the mother, she is entitled to recover from him a reasonable amount for the expenditures she has made in providing for their care and support. [Ed. Note. For other cases, see Divorce, Cent. Dig. § 826; Dec. Dig. 323.] 3. DIVORCE 323-SUPPORT OF CHILDREN— OPENING OF DECREE-REMEDY OF WIFE. While an independent action may be maintained by the mother for such relief, the more appropriate and complete remedy is by opening the decree of divorce, wherein an allowance may be made for past as well as future support of the children. [Ed. Note.-For other cases, see Divorce, Cent. Dig. § 826; Dec. Dig. 323.] "The party placing the wire 4 feet and 4 inches from the pole in the grassy embankment north of the traveled portion of the road cannot be held to have foreseen that a team might become frightened 20 rods east thereof and run upon the embankment. Had the automobile not passed, had it not scared the team, had they not pulled out of the road in spite of the driver's efforts to keep them in it, no harm would have come from the wire, and to hold the company and remanded. Appeal from County. Action by Lucinda Elizabeth Rowell against Asa B. Rowell. From a judgment for defendant, plaintiff appeals. Reversed District Court, Osborne For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |