[DOWNLOAD] "Mckeon v. Kilduff" by Supreme Court of Montana # eBook PDF Kindle ePub Free
eBook details
- Title: Mckeon v. Kilduff
- Author : Supreme Court of Montana
- Release Date : January 16, 1929
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 57 KB
Description
Personal Injuries ? Automobiles ? Street Crossing Accident ? Contributory Negligence ? Rights of Pedestrians and Automobilists in Use of Streets ? Non-suit ? Judgment on Merits Improper. Personal Injuries ? Automobiles ? Street Crossing Accident ? Rights of Pedestrians and Automobilists in Use of Streets. 1. Pedestrians and automobilists have equal rights in the use of streets or highways, in the exercise of which pedestrians are required to use ordinary care for their own safety, and the driver of an automobile must operate it in a careful and prudent manner and at a rate of speed no greater than is reasonable and proper - Page 563 under existing traffic and road conditions and the requirements of city ordinances. Same ? Contributory Negligence ? When Question One of Fact, When of Law ? Non-suit. 2. Where, in a personal injury action, the question of plaintiffs contributory negligence is fairly disputed as to the facts, it is one for the jury to decide; but where the evidence is so clear and convincing that reasonable men of fair and unbiased mind cannot differ as to the fact that the injury was due to plaintiffs own negligence, it becomes the courts duty to decide the case as a matter of law on motion for non-suit or for a directed verdict. Same ? Contributory Negligence ? Non-suit ? When Proper. 3. Contributory negligence is a matter of defense to be established by a preponderance of the evidence, and when plaintiffs evidence raises a presumption that he was not at the time in the exercise of due care, he has failed to make out a prima facie case for the jury, and if he then fails to introduce other evidence to remove such presumption, non-suit is proper. Same. 4. In a personal injury case a non-suit, or a directed verdict in favor of defendant, is proper only where the evidence is undisputed and susceptible of no other construction by reasonable men than in favor of defendant, or where the evidence is in such a condition that, if the case were submitted to a jury and a verdict returned in favor of plaintiff, it would become the duty of the trial court to set it aside. Same ? Proximate Cause of Injury ? Question One for Jury. 5. Like the issues of negligence and contributory negligence, that of proximate cause of the injury is usually one to be determined by the jury. Same ? Automobiles ? Street Crossing Accident ? Pedestrian Choosing One of Two Permissible Modes of Escape not Guilty of Contributory Negligence. 6. Where a traveler upon street or highway has two alternatives as modes of escape from collision with an approaching automobile, either of which might be chosen by an intelligent and prudent person, the law will not hold him guilty of negligence in taking either course, the question of negligence being addressed to the jury. Same ? Automobile Accident at Street Crossing ? Contributory Negligence ? Plaintiff Pedestrian Held not Guilty of Negligence. 7. When plaintiff, in negotiating a street crossing in the nighttime, had reached the middle of the street he observed an automobile approaching about fifty feet distant at a rate of thirty miles an hour; the speed limit was fixed by ordinance at fifteen miles per hour; he accelerated his steps but was struck about five feet from the curb and shoved in front of the car some distance. Held, under the above rules, that the trial court erred in directing a non-suit on the ground of contributory negligence. Non-suit ? Judgment on Merits Improper. 8. Held, that it is never proper for the district court upon granting a non-suit to enter a judgment on the merits, nothing being - Page 564 determined other than that plaintiff had not proved his case as alleged; such a judgment, as a general rule, is not a judgment on the merits and therefore is no bar to another suit upon the same cause of action, the rule applying even when the non-suit is compulsory, i.e., for want or insufficiency of plaintiffs evidence.