Adams v. Dennis
| Decision Date | 07 April 1951 |
| Docket Number | No. 38200,38200 |
| Citation | 229 P.2d 740,171 Kan. 32 |
| Parties | ADAMS v. DENNIS. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
The record examined in an action for wrongful death, and held, that the trial court properly held that the plaintiff's evidence disclosed defendant's negligence and did not, as a matter of law, disclose negligence of the deceased, and that the trial court did not err in overruling the defendant's demurrer to the plaintiff's evidence.
Lester Luther, of Topeka, and W. R. Martin, of Wichita, argued the cause, and George B. Collins, C. L. Williams and Oliver H. Hughes, all of Wichita, were with them on the brief, for the appellant.
James A. Williams, of Dodge City, argued the cause, and Dale H. Corley and Clyde P. Daniel, both of Garden City, and C. W. Hughes, of Dodge City, were with him on the brief, for the appellee.
This was an action for damages for wrongful death in an automobile accident. Defendant appeals from an order overruling his demurrer to plaintiff's evidence.
For present purposes it may be said the pleadings disclosed the following: In her petition plaintiff alleged that she was the duly appointed and qualified administratrix of the estate of Charles Edward Adams, Jr., hereafter referred to as Adams; that on the evening of July 27, 1949, Adams was a passenger in an automobile driven by Duane Hendershot traveling west on U.S. Highway 154 east of Bucklin, Kansas, and as the automobile approached a private drive on the Dennis land on the south side of the highway, defendant Dennis drove his pickup truck from behind a tree onto the highway and into the path of the Hendershot automobile; that at the same time a third automobile was approaching from the west; that Hendershot first attempted to pass the Dennis truck on the right side but was unable to do so on account of the close proximity of the ditch and turned to the left to try to pass the Dennis truck on the left; that on account of the close proximity of the car coming from the west Hendershot was unable to pass the Dennis truck and his automobile went into the ditch on the south side of the highway, turned over and Adams received injuries from which he died. It was alleged that Dennis was negligent in failing to stop before entering upon the highway from the private drive, in failing to look for approaching traffic, in failing to see the Hendershot car, in failing to yield the right of way, and in turning left on the highway across the line of travel of the Hendershot car and occupying Hendershot's side of the road at a time when his car was so close to defendant's truck as to constitute an immediate hazard, and that such negligence was the proximate cause of Adams' death.
Defendant's answer charged that Adams and Hendershot were engaged in a joint venture and that the damages sustained were caused and contributed to by the negligent acts of Adams and Hendershot in seventeen particulars, which will be referred to later insofar as is necessary.
At the trial extensive stipulations were made which included that Adams and Hendershot were making the automobile trip for their mutual benefit and each had an equal voice in the conduct of the trip and the management of the automobile; that a private drive opens out from the Dennis land on the south side of the highway and that about fifty feet east of the driveway and near the edge of the highway was a large tree in full foliage. Evidence in support of plaintiff's allegations was received, and at the close defendant demurred for the reason no cause of action was proved; that the evidence proved defendant was not guilty of any act of negligence but did prove that Adams and Hendershot were guilty of negligence. This demurrer was overruled and defendant offered his proof and apparently plaintiff offered some rebuttal, when defendant renewed his previous demurrer, which was again overruled. By way of explanation it is noted the cause was submitted to a jury, which failed to agree. In due time defendant perfected his appeal from the ruling on the demurrer.
Our review of the evidence is made in view of the fact that the only questions involved are whether Dennis was guilty of negligence, and if he was, whether Adams and Hendershot were guilty of contributory negligence, and also in view of our oft stated rule that in testing the sufficiency of evidence as against a demurrer, the court shall consider all of plaintiff's evidence as true, shall consider the evidence favorable to the plaintiff and disregard that unfavorable to him, shall not weigh any part that is contradictory nor any differences between his direct and cross-examination, and if, so considered, there is any evidence which sustains the plaintiff's case the demurrer shall be overruled.
The evidence disclosed the following physical features: U.S. Highway No. 154 is a hard surfaced road which runs eash and west along the north side of the Dennis farm. On the Dennis farm there are a house, barn and improvements and from the immediate area about them a private roadway runs in a northwesterly direction to the highway. About 50 feet east of the private roadway and close to the south edge of the highway is a large tree with branches to the ground and with a diameter of about 30 feet. About 2,000 feet east of where the private drive meets the highway is a rise of ground and from that point west the view is unobstructed to a point some distance west of the private driveway.
The evidence as to events leading up to Adams' death disclosed that Adams and Hendershot were riding west in a Mercury coupe driven by the latter; that at the time they reached the point 2,000 feet east of the private driveway, they were going at a speed of about 80 miles per hour. Hendershot saw the Dennis pickup truck going out of his yard to the private driveway and toward the highway at a speed of from 10 to 15 miles per hour. Hendershot slowed down to a speed of about 65 miles per hour. He stated he thought Dennis would stop at the highway. Dennis passed behind the tree and three or four seconds later came from behind the tree and went upon the highway and turned to the left or west. At the time Dennis came from behind the tree and upon the highway Hendershot was about 300 feet...
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