Chicago, Rock Island & Pacific Railway Co. v. Ferguson

86 P. 471, 74 Kan. 253, 1906 Kan. LEXIS 48

• Court: Supreme Court of Kansas
• Decided: July 6, 1906
• Docket: No. 14,616
• Status: Published

Opinion

The opinion of the court was delivered by

Smith, J.:

We do not think these facts entitle the defendant to a reversal of the judgment. While the plaintiff might have seen, if he had looked, that the vestibule door was open, he had no reason to suspect that it was open. It was the duty of the trainmen to keep it closed between stations, and he had a right to rely, upon their performance of this duty. The evi- ■ dence is that the plaintiff did not, in fact, see that the door was open. On the other hand it was the duty of ' the porter to know whether or not the door was open, and he is conclusively presumed to have acted with the knowledge he should have possessed.

’ The jury were justified in believing from the evidence that the porter, knowing the door was open, recklessly pushed or jostled the plaintiff and caused him to fall through the door and off the train. If so, the negligence of the porter was the proximate cause of the resulting injuries; and if, as the defendant contends, the plaintiff was guilty of negligence in riding within the vestibule instead of within a coach, which we do not decide, it is still liable for such negligence of the porter.

The judgment of the district court is affirmed.

All the Justices concurring.