Allen v. Pearce Dental Supply Co.

• Decision Date: 08 April 1939
• Docket Number: 34055.
• Citation: 88 P.2d 1057,149 Kan. 549
• Parties: ALLEN v. PEARCE DENTAL SUPPLY CO.
• Court: Kansas Supreme Court

88 P.2d 1057

149 Kan. 549

ALLEN v. PEARCE DENTAL SUPPLY CO.

No. 34055.

Supreme Court of Kansas

April 8, 1939

Syllabus by the Court.

In action for injuries sustained by pedestrian who thought that approaching truck was making left turn into alley which she was about to cross, and who fell as she sought to run back striking from petition reference to ordinance requiring signals for turns was not error, where there was nothing to show that absence of signal had any connection with pedestrian's injury.

In action for injuries sustained by pedestrian who thought that approaching truck would make left turn into alley which she was about to cross, and who fell as she sought to run back exclusion of ordinance prohibiting a motorist from making a left turn into an alley was not error, where there was no showing that making of a left turn was proximate cause of injury.

The action of trial court in excluding testimony would not be considered by reviewing court, where notice of appeal did not specify overruling of motion for new trial and did not assign as error the exclusion of testimony.

Recovery cannot be had in negligence action for injuries received in acting quickly to avoid what was believed to be an imminent danger that had suddenly arisen, unless it appears that negligence of defendant was proximate cause of injury and that fear aroused was a reasonable one which would arise under like circumstances in mind of an ordinarily prudent person.

In action for injuries sustained by pedestrian who thought that defendant's approaching truck would make left turn into alley which she was about to cross, and who fell while seeking to run back, evidence which failed to show speed of truck, that it was being recklessly driven or was not under control, or that truck was driven into alley, was insufficient for jury.

1. Where action for damages, based on negligence, is brought for injuries not directly inflicted by another person, but received in acting quickly to avoid what was believed to be an imminent danger that had suddenly arisen, recovery cannot be had unless it appears, as part of the proof that the negligence of the other person was the proximate cause of the injury, and that the fear aroused was a reasonable one which would naturally arise, under like circumstances, in the mind of an ordinarily prudent person.

2. In an action to recover damages for injuries alleged to have been caused by the negligent operation of defendant's truck, the record is examined, and it is held, that defendant's demurrer to plaintiff's evidence was properly sustained and that the rulings of the trial court complained of do not constitute reversible error.

Appeal from District Court, Sedgwick County, Division No. 3; Grover Pierpont, Judge.

Action by Renetta H. Allen against the Pearce Dental Supply Company to recover for injuries allegedly caused by the negligent operation of defendant's truck. Judgment for defendant and the plaintiff appeals.

Judgment affirmed.

Claude I. Depew, W. E. Stanley, Lawrence Weigand, William C. Hook Sidney J. Brick, and Lawrence Curfman, all of Wichita, for appellant.

Robert C. Foulston, George Siefkin, Sidney L. Foulston, Lester L Morris, George B. Powers, Carl T. Smith, C. H. Morris, and John F. Eberhardt, all of Wichita, for appellee.

HOCH Justice.

This was an action to recover damages for injuries alleged to have been caused by the negligent operation of defendant's truck on November 18, 1936. At the conclusion of plaintiff's testimony the court sustained defendant's demurrer to the evidence and rendered judgment for the defendant. Motion for new trial was overruled and plaintiff appeals, contending that the trial court erred in certain rulings and in sustaining the demurrer to the evidence.

Plaintiff was the only witness testifying as to the accident itself. Other witnesses testified as to her injuries. The plaintiff testified that she was walking south on the west side of Market street in Wichita, Kansas, and saw a truck coming north on the opposite side of the street; that she was then about in the center of the sidewalk and starting across the alley; that when she had taken several steps from the curb she saw the truck turn west about three-fourths of the way across the street; that she became frightened, believing herself to be in imminent danger; that she turned around and ran to the north, fell on the sidewalk and was injured. She stated that she did not know just what caused her to fall. She was not struck by the truck. She testified that after she turned to go back she did not see the truck until she was picked up later, and at that time the truck was north of the alley with its wheels against the curb. On cross examination she testified: "I have never driven a car of my own to amount to anything and when I have driven there was some one else with me. Prior to this accident, I went riding sometimes. I liked to keep away from automobiles. I read of so many accidents. I don't know that I ever had real fear of being struck with one. Not that I was under fear of automobiles, not in that way at all, but I have always felt that as I read of so many accidents that people are generally safer out of them than in them."

Upon motion of the defendant reference to Section 1o of Ordinance 10--376 was struck from the petition. That ordinance requires drivers to give a signal before making a turn. Since no facts were alleged in the petition which might tend to show that failure of the driver of the truck...