Abston v. Medora Grain, Inc.

• Decision Date: 06 March 1971
• Docket Number: No. 45912,45912
• Citation: 482 P.2d 692,206 Kan. 727
• Parties: Orville P. ABSTON, Appellee, v. MEDORA GRAIN, INC., Edward L. Elliott and Frank O. Hoffman, Appelants.
• Court: Kansas Supreme Court

Page 692

482 P.2d 692

206 Kan. 727

Orville P. ABSTON, Appellee, v. MEDORA GRAIN, INC., Edward L. Elliott and Frank O. Hoffman, Appelants.

No. 45912.

Supreme Court of Kansas.

March 6, 1971.

Syllabus by the Court

1. The granting of a continuance is a matter which lies within the sound discretion of the trial court, and its ruling will not be disturbed on appeal in the absence of an abuse of discretion.

2. Where a motion for a directed verdict is made by a litigant at the conclusion of his opponent's evidence and is overruled by the court, and the moving party does not stand on his motion but presents evidence on his own behalf and subsequently renews his motion at the close of all the evidence, the motion, on its renewal, will be determined on the basis of the sufficiency of the entire evidence introduced by all parties.

3. Special findings returned by the jury in response to questions submitted to it are to be construed liberally with the view of ascertaining the jury's actual intentions.

4. A jury's finding of specific negligence against a defendant exonerates him of other acts of negligence which have been charged against him.

5. One who acts in an emergency not of his own making is not held to the same strict standard of judgment which would be required of him under more propitious circumstances and where time existed for reflection.

6. As a general krule, a motorist is required to correlate the speed of his vehicle with his ability to stop within the range of his vision, but there are exceptions which may qualify the rule.

7. Normally the existence of contributory negligence is an issue to be determined by the jury, and it is only when it can be said that reasonable men could reach but one conclusion from the same evidence, that the issue may be decided as a question of law.

8. The record is examined in an action to recover damages sustained in an automobile accident and for reasons appearing in the opinion it is held the trial court did not err (1) in refusing a continuance, (2) in submitting the case to the jury and (3) in submitting instructions to the jury.

Brian G. Grace and Charles W. Harris, of Weigand, Curfman, Brainerd, Harris & Kaufman, Wichita, argued the cause, and George A. Robb, of Somers & Robb, Newton, was with them on the brief for appellants.

Vernon A. Stroberg, of Speir, Stroberg & Sizemore, Newton, argued the cause, and Herbert H. Sizemore, of the same firm, was with him on the brief for appellee.

FONTRON, Justice:

The plaintiff, Orville P. Abston, brings this action against Medora Grain, Inc., and its employees, Edward L. Elliott and Frank O. Hoffman, who together will be designated as defendants, to recover damages sustained in an accident occurring at the junction of U. S. Highway 50 and County Road 811 west of Newton. Judgment ws recovered against the three defendants and all have appealed.

Briefly summarized, the evidence discloses the about 9:30 p. m. the appellee, Abston, to whom we shall refer as plaintiff, was driving his Oldsmobile car west on U. S. 50, accompanied by a friend, when a truck loomed up about 250 to 300 feet ahead standing diagonally across the intersection, and headed in a northwesterly direction. The plaintiff began to pump his brakes and attempted to pass around the truck to the north or right-hand side, but his car went into a skid, causing it to strike a guardrail at the northwest corner of the intersection, whence it plummeted into a creek bed below.

The offending truck, being a tractortrailer combination, was owned by Medora Grain, Inc., and had been driven to Wichita that day by the defendant Elliott with a load of cattle. Elliott was accompanied on the trip by the defendant Hoffman, a fellow employee. Sometime after delivering and unloading the cattle, the two men started back to the metropolis of Medora, following a route which took them north on the county road toward its intersection with U. S. 50, an east-west highway.

As he came to the junction of the two roads, Elliott stopped his truck at the stop sign protecting U. S. 50, where he looked toward the east and observed in the distance the headlights of an oncoming car appearing over a small rise or hill. He then proceeded into the intersection and attempted to make a left-hand turn toward the west, at which point his motor suddenly died from mechanical trouble, leaving the truck in possession of the intersection, and there the truck remained, quite motionless, as the plaintiff approached and attempted to pass around it. Further facts will be detailed as they become pertinent.

Originally, the defendants listed six claims of error in their statement of points. However, on oral argument they abandoned point IV, which related to Hoffman's liability, leaving but five points for our consideration.

The first complaint pertains to the trial court's rejection of the defendants' motion for a continuance, made on the morning of the day on which the case was set for jury trial. The prayer of the motion was in the alternative-either for a general continuance or for a continuance, after the jury was selected, to the following day. The reason given in support of the motion was that the defendants' chief counsel-who had prepared the case for trial-had learned late the previous evening that his mother had been operated for gallstones at a Lawrence hospital earlier in the day and his father felt he should be in Lawrence.

Counsel for plaintiff declined to acquiesce in a continuance and stated his objections, prominent among which were that all his witnesses, including doctors, had been subpoenaed and that his client had taken time off from work. In overruling defendants' motion the trial court noted, among other matters, there would be rescheduling problems relating to doctors, and that motion days were set the latter part of the week in both Harvey and McPherson Counties. The court did observe, however, that it would recess earlier than usual that day, and not later than 4 p. m. On oral argument we were advised that the court did recess early, that defense counsel did drive to Lawrence that evening, returning about 3 a. m. and, happily that counsel's mother had recovered from the operation.

The rule that motions for continuance are addressed to the sound discretion of the trial court is too well embedded in our jurisprudence to require extensive citation of authority. Numerous cases illustrating the rule are found collected in 2 Hatcher's Kansas Digest (Rev. Ed.), Continuances, § 1 and in 3A West's Kansas Digest, Continuance, k7. We shall not discuss application of the rule to the peculiar circumstances of the present case other than to say that in our opinion no prejudice has been shown to have resulted to the defendant. The case appears to have been well and thoroughly tried by both sides, and we find no abuse of judicial discretion.

Defendants next contend that the trial court erred in overruling their motions 'for judgment at all stages of the proceedings', that is to say, at the close of plaintiff's evidence, again at the close of all the evidence, and, finally, after the verdict was returned. Basically the issue for us to decide, so far as these motions are concerned, is whether the verdict is supported by substantial competent evidence. If the verdict is so supported, then the trial court was correct in submitting the case to the jury and in overruling the defendants' motions for judgment.

Even though we assume, without deciding, that plaintiff's evidence alone was insufficient to justify submitting the case to the jury, the question confronting us remains the same-does the verdict find support in the evidence? In Kansas practice, a motion for directed verdict is tantamount to our former demurrer (Ogilvie v. Mangels, 183 Kan. 733, 737, 332 P.2d 581; Fox v. Massey-Ferguson, Inc., 206 Kan. 97, 99, 476 P.2d 646), and we have frequently said that where a demurrer to the plaintiff's evidence is overruled at the conclusion of his case and the defendant does not rest on his demurrer but proceeds with his case, his evidence may cure whatever defects inhere in his adversary's evidence and, at the conclusion of the entire case, the sufficiency of the evidence must be determined from all the evidence, the defendant's as well as the plaintiff's. (Ziegelasch v. Durr, 183 Kan. 233, 326 P.2d 295; Anderson v. Thomas, 184 Kan. 240, 336 P.2d 821; Weber v. Wilson, 187 Kan. 214, 356 P.2d 659; Bowers v. Gardner, 187 Kan. 720, 360 P.2d 17.)

Our decisions in this area accord with what we believe to be the general rule. In 2B Barron and Holtzoff, Federal Practice and Procedure, § 1074, pp. 372-374, we find it stated this way:

'Technically a party waives his right to a directed verdict, if the motion is made at the close of his opponent's case, and thereafter he introduces evidence in his own behalf. However he may renew the motion at the close of all the evidence. If he fails so to renew the motion, he may not claim error on appeal because of denial of his motion. The renewed motion will be judged in the light of the case as it stands at that time, and even though the court may have erred in denying the initial motion, this error is cured if subsequent testimony on behalf of the moving party repairs the defects of his opponent's case.' (Emphasis supplied.)

A Concise summation of the rule appears in Smith v. Sharp, 85 Idaho 17, 375 P.2d 184:

'* * * (I)f the motion ,(for directed verdict) is renewed and denied by the trial court, the moving party may claim such ruling as error on appeal. In such a case, the appellate court will review the evidence as it stands at the close of the trial.' (p. 27, 375 P.2d p. 190.)

The rule is applicable to the situation in this case, inasmuch as the defendants did not stand on their motion for directed verdict at the close of plaintiff's evidence, as they had a right to do, but proceeded to present their own evidence, as was also their privilege. (See Weber v. Wilson,...