Anderson v. Thompson

• Decision Date: 10 June 1933
• Docket Number: 30936.
• Citation: 22 P.2d 438,137 Kan. 754
• Parties: ANDERSON v. THOMPSON et al.
• Court: Kansas Supreme Court

22 P.2d 438

137 Kan. 754

ANDERSON v. THOMPSON et al.

No. 30936.

Supreme Court of Kansas

June 10, 1933

Syllabus by the Court.

Instruction to effect that it was absolute duty of motorist to stop if blinded by bright lights of approaching automobile at night held properly refused.

In action for death of motorist fatally injured while changing tire alongside highway, whether driver of defendants' automobile, blinded by lights of approaching automobile, was negligent, held for jury.

Evidence supported finding that motorist struck while changing tire alongside highway, when driver of defendants' automobile was blinded by lights of automobile approaching from opposite direction, was contributorily negligent.

In action for death of motorist struck while changing tire alongside highway, when driver of defendants' automobile was blinded by lights of approaching automobile plaintiff's instruction on subject of conduct in emergency held properly refused, where correct instruction on subject was given.

Operator of motor vehicle on highway may not be relieved of contributory negligence on ground defendant ought to have anticipated plaintiff would be guilty of contributory negligence.

Verdict of jury may not be impeached by inquiry into juror's views or reasons therefor, or what influenced views.

In automobile accident case, alleged misconduct of jurors, to effect that they would not sign verdict for plaintiff because attorney had case on percentage basis held not prejudicial to plaintiff's substantial rights.

1. The proceedings considered in an action for damages for death of an automobile operator resulting from a collision of automobiles on a highway, and held, an instruction to the effect it is the absolute duty of an automobile driver who is blinded by bright lights of an approaching automobile to stop was properly refused.

2. Plaintiff requested an instruction on the subject of conduct in an emergency, and the court gave a correct instruction on that subject. Held, plaintiff may not complain.

3. One chargeable with the duties and responsibilities of operator of a motor vehicle on a highway may not, in his own action against another, be relieved of the consequences of contributory negligence on the ground the defendant ought to have anticipated plaintiff would be guilty of negligence contributing to his injury.

4. An assignment of error that jurors displayed bias and were guilty of misconduct in the consideration of the case in the jury room, considered, and held to be without substantial merit.

5. The verdict was sustained by sufficient evidence.

Appeal from District Court, Sumner County; Wendell Ready, Judge.

Action by R. M. Anderson against U. L. Thompson and another. From a judgment in favor of the defendants, the plaintiff appeals.

Judgment affirmed.

Bert E Church, of Wellington, W. L. Cunningham, D. Arthur Walker, Fred G. Leach, and Wm. E. Cunningham, all of Arkansas City, for appellant.

H. W. Goodwin and W. H. Schwinn, both of Wellington, J. N. Tincher, of Hutchinson, and Riley W. MacGregor, of Medicine Lodge, for appellees.

BURCH Justice.

The action was one by plaintiff for damages for death of his son resulting from injuries received in a collision of automobiles. The verdict was for defendants, and plaintiff appeals.

On the night of August 8, 1931, Paul Wade was driving eastward in a Ford touring car on Highway No. 160, west of Wellington. John Heasty was with Wade. As they approached rising ground, spoken of as a hill, south of Mayfield, they saw a Ford coupé in the road, headed toward the west, and recognized Floyd Anderson, who was changing a tire on the left rear wheel of the coupé. Wade and Heasty drove by, turned around, drove back, and parked their car behind Floyd's car so the lights of their car would illuminate the rear end of his car.

On August 8th, defendant U. L. Thompson went in his automobile from his home in Medicine Lodge to Wellington to meet his daughter Mildred. With him was his daughter Lavon, who is also a defendant. About 11 o'clock at night, they left Wellington for home. Lavon was driving the car, and her father was in the back seat. As they proceeded westward on No. 160 at a speed of thirty to thirty-five miles per hour, they came over the brow of the hill south of Mayfield and saw in the distance west of them the tail light of an automobile. Presently a car approached from the west with bright lights, which gradually blinded Lavon. She reduced the speed of her car to about twenty to twenty-five miles per hour, but kept it in motion forward. When the bright lights had passed by, she saw a standing car ahead of her and about twenty feet away. She immediately applied the brakes and turned to to the left, but was unsuccessful in avoiding a collision. Her car struck the Wade car, which in turn struck the Anderson car, and Floyd Anderson sustained injuries which caused his death.

The jury was not required to make special findings of fact. The evidence was irreconcilably conflicting with respect to important details of the accident, and under the well-understood rule regarding appellate review, the general verdict must be regarded as based on the evidence most favorable to defendants, and the inferences most favorable to defendants derivable from the evidence.

Plaintiff requested an instruction to the jury that it was the duty of the driver of the Thompson car to stop when vision was inhibited by blinding lights of the car approaching from the west. If this were the peremptory rule governing night automobile driving, a person obliged to leave Topeka after dark to make a trip to Kansas City on Highway U.S. No. 40 might not reach his destination much before morning. Clearly such a rule should not be applied to a driver who, notwithstanding the blinding lights, could know to a certainty there was no obstruction immediately beyond the point of relief from the dazzling lights. If a vigilant driver, proceeding at a moderate rate of speed, should be reasonably sure he might safely go forward without stopping, he would not necessarily be negligent in doing so. Therefore the question ultimately resolves itself into one of reasonable care under all the circumstances. In this instance, the subject was fairly covered by an instruction to the jury that a motorist driving at night, unable to see because of bright lights of an approaching car, should correlate speed and ability to stop with ability to see.

The driver of the Thompson car saw the tail-light of an automobile in the distance down the road ahead of her. She testified she was not able to determine definitely whether the light was stationary or was moving, but under the circumstances she described she believed the light was moving. There is room for the inference she saw the tail-light of the Wade car as it moved in...