Kansas doctrine in Missouri

1941We, therefore, think that clearly the Kansas doctrine of last clear chance is based on and limited to cases where the plaintiff is in helpless or inextricable peril, though so placed by his own negligence, *Page 910 and the defendant discovers or ought to discover him in that condition and yet has the ability by due care and the means at hand to avoid the injury, but fails to do so." This statement is supported by the following authorities: Muir v. Fleming et al., 116 Kan. 551 , 227 P. 536 ; Atherton v. Railways Co., 107 Kan. 6 , 190 P. 430 ; Jamison v. Railroad, 122 Kan. 305 , 308, 252 P. 472

1941We, therefore, think that clearly the Kansas doctrine of last clear chance is based on and limited to cases where the plaintiff is in helpless or inextricable peril, though so placed by his own negligence, *Page 910 and the defendant discovers or ought to discover him in that condition and yet has the ability by due care and the means at hand to avoid the injury, but fails to do so." This statement is supported by the following authorities: Muir v. Fleming et al., 116 Kan. 551 , 227 P. 536 ; Atherton v. Railways Co., 107 Kan. 6 , 190 P. 430 ; Jamison v. Railroad, 122 Kan. 305 , 308, 252 P. 472

1927Defendant .argues that plaintiff’s testimony shows that it was fourteen feet between the nearest rails of the two tracks, and that, under the Kansas rule, he should have stopped within that fourteen feet and looked ,and listened, after passing the south end of the Santa Fe coaches, under the decisions in Rathbone v. Railway Co., 113 Kans. 257 , 214 Pac. 109 , and Wehe v. Railway Co., 97 Kan. 794 , 156 Pac. 742 .

1927Defendant .argues that plaintiff’s testimony shows that it was fourteen feet between the nearest rails of the two tracks, and that, under the Kansas rule, he should have stopped within that fourteen feet and looked ,and listened, after passing the south end of the Santa Fe coaches, under the decisions in Rathbone v. Railway Co., 113 Kans. 257 , 214 Pac. 109 , and Wehe v. Railway Co., 97 Kan. 794 , 156 Pac. 742 .

1941We, therefore, think that clearly the Kansas doctrine of last clear chance is based on and limited to cases where the plaintiff is in helpless or inextricable peril, though so placed by his own negligence, *Page 910 and the defendant discovers or ought to discover him in that condition and yet has the ability by due care and the means at hand to avoid the injury, but fails to do so." This statement is supported by the following authorities: Muir v. Fleming et al., 116 Kan. 551 , 227 P. 536 ; Atherton v. Railways Co., 107 Kan. 6 , 190 P. 430 ; Jamison v. Railroad, 122 Kan. 305 , 308, 252 P. 472

1941We, therefore, think that clearly the Kansas doctrine of last clear chance is based on and limited to cases where the plaintiff is in helpless or inextricable peril, though so placed by his own negligence, *Page 910 and the defendant discovers or ought to discover him in that condition and yet has the ability by due care and the means at hand to avoid the injury, but fails to do so." This statement is supported by the following authorities: Muir v. Fleming et al., 116 Kan. 551 , 227 P. 536 ; Atherton v. Railways Co., 107 Kan. 6 , 190 P. 430 ; Jamison v. Railroad, 122 Kan. 305 , 308, 252 P. 472

1932In the case of Woodward v. Bush, 282 Mo. 163 , 220 S.W. 839 , it is said: "Going to the Kansas rule as to contributory negligence in the case of automobile crossing a railroad track, we find several phases to the rule.

1932In the case of Woodward v. Bush, 282 Mo. 163 , 220 S.W. 839 , it is said: "Going to the Kansas rule as to contributory negligence in the case of automobile crossing a railroad track, we find several phases to the rule.

1918In Dyerson v. Railroad, supra, p. 534, it is said: “There is a general agreement in the authorities that where an engineer actually sees a person in a position of danger, and then fails to do what he reasonably can to- prevent an accident, the railroad company is responsible for the resulting injury, irrespective of the question of contributory negligence.” And in Marple v. Topeka Railway Co., 85 Kans. 699, 706 , it is said: “It'is true, as stated in the opinion in the Dyerson case ( 74 Kans. 528, 534 ), that a different principle would apply if the motorman actually saw the deceased in an exp

1918In Dyerson v. Railroad, supra, p. 534, it is said: “There is a general agreement in the authorities that where an engineer actually sees a person in a position of danger, and then fails to do what he reasonably can to- prevent an accident, the railroad company is responsible for the resulting injury, irrespective of the question of contributory negligence.” And in Marple v. Topeka Railway Co., 85 Kans. 699, 706 , it is said: “It'is true, as stated in the opinion in the Dyerson case ( 74 Kans. 528, 534 ), that a different principle would apply if the motorman actually saw the deceased in an exp

1991The Kansas rule is stated in Jim Mahoney, Inc. v. Galokee Corp., 214 Kan. 754, 757 , 522 P.2d 428 (1974): When a building contract has been so far performed that the building is occupied and used by the owner for the purposes contemplated by the contracting parties and where correction or completion would not involve unreasonable destruction of the work done by the contractor evidence of the cost of correcting the defects and completing the omissions will, as a general rule, be a fair measure of the damages.

1991The Kansas rule is stated in Jim Mahoney, Inc. v. Galokee Corp., 214 Kan. 754, 757 , 522 P.2d 428 (1974): When a building contract has been so far performed that the building is occupied and used by the owner for the purposes contemplated by the contracting parties and where correction or completion would not involve unreasonable destruction of the work done by the contractor evidence of the cost of correcting the defects and completing the omissions will, as a general rule, be a fair measure of the damages.

1987Sperandio, 581 S.W.2d at 381 , quoting from Kulko, 98 S.Ct. at 1697 .

1987Sperandio, 581 S.W.2d at 381 , quoting from Kulko, 98 S.Ct. at 1697 .

1974Phelps cites as authority Clogston v. White, 127 Kan. 399 , 273 P. 458 (1929) which, on rehearing [ 127 Kan. 668 , 274 P. 745 ] held that where the amount due on a contract presents a jury question, interest is allowable only from the date of the judgment.

1974Phelps cites as authority Clogston v. White, 127 Kan. 399 , 273 P. 458 (1929) which, on rehearing [ 127 Kan. 668 , 274 P. 745 ] held that where the amount due on a contract presents a jury question, interest is allowable only from the date of the judgment.

1974Phelps cites as authority Clogston v. White, 127 Kan. 399 , 273 P. 458 (1929) which, on rehearing [ 127 Kan. 668 , 274 P. 745 ] held that where the amount due on a contract presents a jury question, interest is allowable only from the date of the judgment.

1974Phelps cites as authority Clogston v. White, 127 Kan. 399 , 273 P. 458 (1929) which, on rehearing [ 127 Kan. 668 , 274 P. 745 ] held that where the amount due on a contract presents a jury question, interest is allowable only from the date of the judgment.

1964The fact that the Kansas rule was applied in Travelers Fire Insurance Co., Hartford, Conn. v. Whaley, 10 Cir., 1959, 272 F.2d 288 , cannot be regarded as further authority for the Kansas rule since the case was one in which the Federal Courts were bound to apply Kansas law”. *545 In an effort to find further enlightenment we examine the dictionary, and a textbook authority.

1964The fact that the Kansas rule was applied in Travelers Fire Insurance Co., Hartford, Conn. v. Whaley, 10 Cir., 1959, 272 F.2d 288 , cannot be regarded as further authority for the Kansas rule since the case was one in which the Federal Courts were bound to apply Kansas law”. *545 In an effort to find further enlightenment we examine the dictionary, and a textbook authority.

1941We, therefore, think that clearly the Kansas doctrine of last clear chance is based on and limited to cases where the plaintiff is in helpless or inextricable peril, though so placed by his own negligence, *Page 910 and the defendant discovers or ought to discover him in that condition and yet has the ability by due care and the means at hand to avoid the injury, but fails to do so." This statement is supported by the following authorities: Muir v. Fleming et al., 116 Kan. 551 , 227 P. 536 ; Atherton v. Railways Co., 107 Kan. 6 , 190 P. 430 ; Jamison v. Railroad, 122 Kan. 305 , 308, 252 P. 472

1941We, therefore, think that clearly the Kansas doctrine of last clear chance is based on and limited to cases where the plaintiff is in helpless or inextricable peril, though so placed by his own negligence, *Page 910 and the defendant discovers or ought to discover him in that condition and yet has the ability by due care and the means at hand to avoid the injury, but fails to do so." This statement is supported by the following authorities: Muir v. Fleming et al., 116 Kan. 551 , 227 P. 536 ; Atherton v. Railways Co., 107 Kan. 6 , 190 P. 430 ; Jamison v. Railroad, 122 Kan. 305 , 308, 252 P. 472

1941We, therefore, think that clearly the Kansas doctrine of last clear chance is based on and limited to cases where the plaintiff is in helpless or inextricable peril, though so placed by his own negligence, *Page 910 and the defendant discovers or ought to discover him in that condition and yet has the ability by due care and the means at hand to avoid the injury, but fails to do so." This statement is supported by the following authorities: Muir v. Fleming et al., 116 Kan. 551 , 227 P. 536 ; Atherton v. Railways Co., 107 Kan. 6 , 190 P. 430 ; Jamison v. Railroad, 122 Kan. 305 , 308, 252 P. 472

1941We, therefore, think that clearly the Kansas doctrine of last clear chance is based on and limited to cases where the plaintiff is in helpless or inextricable peril, though so placed by his own negligence, *Page 910 and the defendant discovers or ought to discover him in that condition and yet has the ability by due care and the means at hand to avoid the injury, but fails to do so." This statement is supported by the following authorities: Muir v. Fleming et al., 116 Kan. 551 , 227 P. 536 ; Atherton v. Railways Co., 107 Kan. 6 , 190 P. 430 ; Jamison v. Railroad, 122 Kan. 305 , 308, 252 P. 472

1941We, therefore, think that clearly the Kansas doctrine of last clear chance is based on and limited to cases where the plaintiff is in helpless or inextricable peril, though so placed by his own negligence, *Page 910 and the defendant discovers or ought to discover him in that condition and yet has the ability by due care and the means at hand to avoid the injury, but fails to do so." This statement is supported by the following authorities: Muir v. Fleming et al., 116 Kan. 551 , 227 P. 536 ; Atherton v. Railways Co., 107 Kan. 6 , 190 P. 430 ; Jamison v. Railroad, 122 Kan. 305 , 308, 252 P. 472

1941We, therefore, think that clearly the Kansas doctrine of last clear chance is based on and limited to cases where the plaintiff is in helpless or inextricable peril, though so placed by his own negligence, *Page 910 and the defendant discovers or ought to discover him in that condition and yet has the ability by due care and the means at hand to avoid the injury, but fails to do so." This statement is supported by the following authorities: Muir v. Fleming et al., 116 Kan. 551 , 227 P. 536 ; Atherton v. Railways Co., 107 Kan. 6 , 190 P. 430 ; Jamison v. Railroad, 122 Kan. 305 , 308, 252 P. 472

1941We, therefore, think that clearly the Kansas doctrine of last clear chance is based on and limited to cases where the plaintiff is in helpless or inextricable peril, though so placed by his own negligence, *Page 910 and the defendant discovers or ought to discover him in that condition and yet has the ability by due care and the means at hand to avoid the injury, but fails to do so." This statement is supported by the following authorities: Muir v. Fleming et al., 116 Kan. 551 , 227 P. 536 ; Atherton v. Railways Co., 107 Kan. 6 , 190 P. 430 ; Jamison v. Railroad, 122 Kan. 305 , 308, 252 P. 472

1941We, therefore, think that clearly the Kansas doctrine of last clear chance is based on and limited to cases where the plaintiff is in helpless or inextricable peril, though so placed by his own negligence, *Page 910 and the defendant discovers or ought to discover him in that condition and yet has the ability by due care and the means at hand to avoid the injury, but fails to do so." This statement is supported by the following authorities: Muir v. Fleming et al., 116 Kan. 551 , 227 P. 536 ; Atherton v. Railways Co., 107 Kan. 6 , 190 P. 430 ; Jamison v. Railroad, 122 Kan. 305 , 308, 252 P. 472

1941We, therefore, think that clearly the Kansas doctrine of last clear chance is based on and limited to cases where the plaintiff is in helpless or inextricable peril, though so placed by his own negligence, *Page 910 and the defendant discovers or ought to discover him in that condition and yet has the ability by due care and the means at hand to avoid the injury, but fails to do so." This statement is supported by the following authorities: Muir v. Fleming et al., 116 Kan. 551 , 227 P. 536 ; Atherton v. Railways Co., 107 Kan. 6 , 190 P. 430 ; Jamison v. Railroad, 122 Kan. 305 , 308, 252 P. 472

1941We, therefore, think that clearly the Kansas doctrine of last clear chance is based on and limited to cases where the plaintiff is in helpless or inextricable peril, though so placed by his own negligence, *Page 910 and the defendant discovers or ought to discover him in that condition and yet has the ability by due care and the means at hand to avoid the injury, but fails to do so." This statement is supported by the following authorities: Muir v. Fleming et al., 116 Kan. 551 , 227 P. 536 ; Atherton v. Railways Co., 107 Kan. 6 , 190 P. 430 ; Jamison v. Railroad, 122 Kan. 305 , 308, 252 P. 472

1927Defendant .argues that plaintiff’s testimony shows that it was fourteen feet between the nearest rails of the two tracks, and that, under the Kansas rule, he should have stopped within that fourteen feet and looked ,and listened, after passing the south end of the Santa Fe coaches, under the decisions in Rathbone v. Railway Co., 113 Kans. 257 , 214 Pac. 109 , and Wehe v. Railway Co., 97 Kan. 794 , 156 Pac. 742 .

1927Defendant .argues that plaintiff’s testimony shows that it was fourteen feet between the nearest rails of the two tracks, and that, under the Kansas rule, he should have stopped within that fourteen feet and looked ,and listened, after passing the south end of the Santa Fe coaches, under the decisions in Rathbone v. Railway Co., 113 Kans. 257 , 214 Pac. 109 , and Wehe v. Railway Co., 97 Kan. 794 , 156 Pac. 742 .

1918Supp. 942 ; Riley v. Salt Lake Rapid Transit Co., 37 Pac. 681 ] The theory upon which the Kansas rule rests is that if the negligence of the defendant and of the injured plaintiff is concurrent and exists up to the time of the injury, both have caused it and the plaintiff cannot recover.

1918Supp. 942 ; Riley v. Salt Lake Rapid Transit Co., 37 Pac. 681 ] The theory upon which the Kansas rule rests is that if the negligence of the defendant and of the injured plaintiff is concurrent and exists up to the time of the injury, both have caused it and the plaintiff cannot recover.

1914Co. v. Dwyer, 20 Colo. 132 ; Doyle v. Railroad, 166 Mass. 492 ; Peterson v. Traction Co., 23 Wash. 615 ; Harris v. Railroad, 52 Wash. 289 ; Dugan v. Railroad, 193 Mass. 431 ; Eberts v. Railroad, 151 Mich. 260 .] It appears the Kansas doctrine is not out of line with our own and our own is well formulated in the Cherry case supra, thus: “ A multitude of cases could be cited bearing upon the question under consideration, but as there is an irreconcilable conflict between the adjudications, the foregoing is sufficient to show that whilst in England it is held that a railroad company may by specia

1914Co. v. Dwyer, 20 Colo. 132 ; Doyle v. Railroad, 166 Mass. 492 ; Peterson v. Traction Co., 23 Wash. 615 ; Harris v. Railroad, 52 Wash. 289 ; Dugan v. Railroad, 193 Mass. 431 ; Eberts v. Railroad, 151 Mich. 260 .] It appears the Kansas doctrine is not out of line with our own and our own is well formulated in the Cherry case supra, thus: “ A multitude of cases could be cited bearing upon the question under consideration, but as there is an irreconcilable conflict between the adjudications, the foregoing is sufficient to show that whilst in England it is held that a railroad company may by specia

1914Co. v. Dwyer, 20 Colo. 132 ; Doyle v. Railroad, 166 Mass. 492 ; Peterson v. Traction Co., 23 Wash. 615 ; Harris v. Railroad, 52 Wash. 289 ; Dugan v. Railroad, 193 Mass. 431 ; Eberts v. Railroad, 151 Mich. 260 .] It appears the Kansas doctrine is not out of line with our own and our own is well formulated in the Cherry case supra, thus: “ A multitude of cases could be cited bearing upon the question under consideration, but as there is an irreconcilable conflict between the adjudications, the foregoing is sufficient to show that whilst in England it is held that a railroad company may by specia

1914Co. v. Dwyer, 20 Colo. 132 ; Doyle v. Railroad, 166 Mass. 492 ; Peterson v. Traction Co., 23 Wash. 615 ; Harris v. Railroad, 52 Wash. 289 ; Dugan v. Railroad, 193 Mass. 431 ; Eberts v. Railroad, 151 Mich. 260 .] It appears the Kansas doctrine is not out of line with our own and our own is well formulated in the Cherry case supra, thus: “ A multitude of cases could be cited bearing upon the question under consideration, but as there is an irreconcilable conflict between the adjudications, the foregoing is sufficient to show that whilst in England it is held that a railroad company may by specia

1914Co. v. Dwyer, 20 Colo. 132 ; Doyle v. Railroad, 166 Mass. 492 ; Peterson v. Traction Co., 23 Wash. 615 ; Harris v. Railroad, 52 Wash. 289 ; Dugan v. Railroad, 193 Mass. 431 ; Eberts v. Railroad, 151 Mich. 260 .] It appears the Kansas doctrine is not out of line with our own and our own is well formulated in the Cherry case supra, thus: “ A multitude of cases could be cited bearing upon the question under consideration, but as there is an irreconcilable conflict between the adjudications, the foregoing is sufficient to show that whilst in England it is held that a railroad company may by specia

1914Co. v. Dwyer, 20 Colo. 132 ; Doyle v. Railroad, 166 Mass. 492 ; Peterson v. Traction Co., 23 Wash. 615 ; Harris v. Railroad, 52 Wash. 289 ; Dugan v. Railroad, 193 Mass. 431 ; Eberts v. Railroad, 151 Mich. 260 .] It appears the Kansas doctrine is not out of line with our own and our own is well formulated in the Cherry case supra, thus: “ A multitude of cases could be cited bearing upon the question under consideration, but as there is an irreconcilable conflict between the adjudications, the foregoing is sufficient to show that whilst in England it is held that a railroad company may by specia

1914The authorities supporting it are abundant and as uniform as possibly can be where courts deal with a subject-matter of such infinite vari&ty of detail as the law of negligence. [Dyerson v. Railroad, 74 Kan. 528 ; Coleman v. Railroad, 87 Kan. 190 ; Dunlap v. Railroad, 87 Kan. 197 ; Marple v. Railroad, 85 Kan. 699 ; Beech v. Railroad, 85 Kan. 90 ; Jones v. Railroad, 85 Kan. 313 .] "When rightly understood and applied there is nothing in the decisions of that court, to which plaintiff cites us, at all modifying the reasoning and conclusions of the cases just cited.

1914The authorities supporting it are abundant and as uniform as possibly can be where courts deal with a subject-matter of such infinite vari&ty of detail as the law of negligence. [Dyerson v. Railroad, 74 Kan. 528 ; Coleman v. Railroad, 87 Kan. 190 ; Dunlap v. Railroad, 87 Kan. 197 ; Marple v. Railroad, 85 Kan. 699 ; Beech v. Railroad, 85 Kan. 90 ; Jones v. Railroad, 85 Kan. 313 .] "When rightly understood and applied there is nothing in the decisions of that court, to which plaintiff cites us, at all modifying the reasoning and conclusions of the cases just cited.

1914To drop into the phrase of the logicians: There is a dilemma and plaintiff, impaled on either horn, cannot escape between the horns. (f) It is argued that the decision of the Kansas City Court of Appeals on a former appeal ( 151 Mo. App. 364 ) is res adjudicada on the question whether there was a case for the jury.