Central Surety & Ins. Corporation v. Murphy

• Decision Date: 03 April 1939
• Docket Number: No. 1763-1765.,1763-1765.
• Citation: 103 F.2d 117
• Parties: CENTRAL SURETY & INS. CORPORATION v. MURPHY. SAME v. PARKER et ux. SAME v. WOOD.
• Court: U.S. Court of Appeals — Tenth Circuit

103 F.2d 117 (1939)

CENTRAL SURETY & INS. CORPORATION v. MURPHY. SAME v. PARKER et ux.

SAME v. WOOD.

Nos. 1763-1765.

Circuit Court of Appeals, Tenth Circuit.

April 3, 1939.

LaRue Royce, of Salina, Kan. (C. W. Burch, B. I. Litowich, L. E. Clevenger, E. S. Hampton, and R. E. Haggart, all of Salina, Kan., on the brief), for appellant.

Cliff A. Matson, of Wichita, Kan., and R. O. Mason, of McPherson, Kan. (Irwin H. Stearns and E. P. Villepigue, both of Wichita, Kan., and James L. Galle, of McPherson, Kan., on the brief), for appellees.

Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.

BRATTON, Circuit Judge.

These are three separate suits to recover damages growing out of a collision of an automobile and a truck which took place at about 10:30 o'clock at night on a public highway in Kansas. Robert L. Harmison, Paul Parker, and Earl Wood, young men in their early twenties, were in the automobile. It crashed into the rear of a truck owned by R. D. Partridge and insured by Central Surety and Insurance Corporation. Harmison was killed instantly; Parker died a few hours later; and Wood suffered serious bodily injuries. The surviving widow of Harmison, a minor, by next friend, filed one suit; the surviving parents of Parker filed another; and Wood filed a third. Partridge and the insurance company were joined as defendants. Partridge was not served and did not appear. The insurance company answered and defended. The actions were consolidated for trial. A demurrer to the evidence made at the time plaintiffs rested their case in chief was overruled, and a motion for directed verdict submitted at the close of all the evidence was denied. The issues of negligence and contributory negligence were submitted to the jury. No exceptions were taken to the instructions. Separate verdicts were returned for plaintiffs; judgments were entered upon them; and the insurance company perfected separate appeals. The cases were brought here on a single record and were argued together.

It is contended that the court erred in refusing to direct a verdict for the insurance company for the reason that the evidence was not sufficient to warrant the submission to the jury of the issue of negligence in the operation of the truck. The petition in each case alleged that the truck was parked on the highway at night without any lights of any kind or character on the rear of it. The parking of a truck on the public highway in Kansas at night without lights constitutes negligence. McCoy v. Pittsburg Boiler & Machine Co., 124 Kan. 414, 261 P. 30; Frakes v. Travelers Mut. Casualty Co., 148 Kan. 637, 84 P.2d 871. The sufficiency of the pleading to state a cause of action is not challenged. The question is whether there was substantial evidence tending to show that the truck was parked on the highway without any lights on the rear of it. The relevant evidence will be reviewed. Using the trade name Flying Quail Truck Service, Partridge was engaged in the business of hauling beer from breweries in Peoria, Illinois, to Hutchinson, Kansas. He owned two truck units, each consisting of a tractor and semi-trailer. On the night in question two of his employees were enroute from Peoria to Hutchinson with a load of beer. The truck and cargo weighed about 31,000 pounds. There were eleven red lights and two red reflectors at the rear of the trailer. A member of the state highway patrol engaged in checking the lights on all transports and semi-trailers at Lindsboro, examined the lights on the tractor and trailer at between 9 and 9:30 P. M. and found all of them lighted and in perfect order. The employee taking the wheel at McPherson examined the lights and found all of them burning. He drove until the accident occurred. It was raining. Both employees testified that on account of the rain and the fact that they were meeting two automobiles the truck was put in compound gear — its lowest gear; that they were moving at between five and eight miles per hour at the time the automobile crashed into the rear of the truck; that the truck was stopped immediately; that the lights on the trailer were examined; and that all of them were burning except one at the botton on the lefthand corner, which had been broken. A brother of Parker arrived at the scene of the accident about midnight. He found all of the lights on the rear of the trailer burning at that time except the one on the lower left corner. A few minutes later, the sheriff and the driver of an ambulance arrived together. When they came over a hill about half a mile away, they saw red lights burning on the back of the trailer. But Wood testified definitely and without qualification or equivocation that the truck was standing still and without any lights, reflectors, or flares, at the time of the crash. There was further testimony that the spring leaves on the front of the automobile were driven into the center of the right tire of the dual set at the rear of the trailer on the left side; that it was a straight puncture and did not tear the tire; and that the springs were still sticking in the tire after the collision. The tire was exhibited to the jury but is not before this court. In addition, there was testimony that the oil spilled from the automobile covered a space in the highway of only fourteen to eighteen inches from east to west.

The court should direct a verdict where the evidence is without dispute, or is conflicting but of such conclusive nature that if a verdict were returned for one party the exercise of sound judicial discretion would require that it be set aside. A mere scintilla of evidence is not enough to justify the submission of an issue to the jury. Small Co. v. Lamborn & Co., 267 U.S. 248, 45 S.Ct. 300, 69 L.Ed. 597; Gunning v. Cooley, 281 U.S. 90, 49 S.Ct. 263, 73 L.Ed. 979; Rouse v. Burnham, 10 Cir., 51 F.2d 709; Murray Company v. Harrill, 10 Cir., 51 F.2d 883. But contradictions and conflicts of evidence are for the jury, and where the evidence and the inferences fairly deducible from it are such that reasonable minds may honestly draw different conclusions from them, the question is not one of law but of fact to be determined by the jury. Gunning v. Cooley, supra; Wirthlin v. Mutual Life Ins. Co., 10 Cir., 56 F.2d 137, 86 A.L.R. 138; Travelers' Ins. Co. v. Bancroft, 10 Cir., 65 F.2d 963; Missouri State Life Ins. Co. v. West, 10 Cir., 67 F.2d 468; Zumbrun v. City of Osawatomie, 130 Kan. 719, 288 P. 584.

The evidence was in conflict as to whether the truck was in motion with its lights on or was parked without being lighted. Reasonable minds could honestly reach different conclusions upon the question. While there was strong countervailing evidence, it cannot be said that the testimony of Wood and the physical facts which reasonably could be regarded as corroborating it were so insubstantial that they did not warrant the submission of the issue to the jury. Neither can it be said that the finding of the jury is not supported by substantial evidence.

It is further contended that plaintiffs cannot recover because of contributory negligence. The contributory negligence relied upon is that the automobile was being driven at such rate of speed that it could not be stopped in time to avoid a collision with an obstruction discernible within the range of vision ahead. It may be appropriate to note in passing that contributory negligence is a matter of affirmative defense in Kansas, and the burden rests upon a defendant who relies upon it to prove the fact. The burden does not shift to plaintiff. Heck v. Quindaro Township, 113 Kan. 647, 216 P. 293; Lilly v. Wichita R. & Light Co., 127 Kan. 527, 274 P. 205; Lindsley v. Bonar, 129 Kan. 441, 283 P. 921. But where the testimony of plaintiff discloses such contributory negligence as precludes recovery on his part, defendant may take advantage of it. Houdashelt v. State Highway Commission, 137 Kan. 485, 21 P.2d 343. Taking up the evidence pertinent to the question, Harmison, Parker, and Wood were employed by the same motor company in McPherson, Kansas; and they were experienced in the use of automobiles. Wood worked from 8 o'clock in the morning until six in the afternoon; Parker from 9 in the morning until 7 in the evening; and Harmison from 4 in the afternoon until closing time at night. When Harmison went to work on the day in question, he made arrangements for another employee to work in his stead that evening, stating that he had something planned to do. Parker owned the automobile involved in the accident. Harmison and Parker met Wood while driving around McPherson early in the evening. They stated that they were going to Hutchinson to sell a radio to a brother of Wood and asked him whether he desired to accompany them. He joined them and the three drove around the city for awhile. They went to an inn where Wood drank a bottle of beer. The evidence presented a conflict in respect to whether there was other drinking during the evening. They started for Hutchinson at about 10 o'clock. It was raining a little at the time. Parker was driving at the time of the accident; Harmison was sitting in the front seat beside him; and Wood was sitting in the rear seat with his elbows on the back of the front seat looking between the two and watching the road ahead. Wood testified that it was just sprinkling rain; that the lights on the automobile were dimmed as due to the condition of weather they could see better with them in that manner; that they could see from thirty to forty feet ahead; that they were traveling at...