Antrim v. Speer

• Decision Date: 06 June 1931
• Docket Number: 29,959
• Parties: GLENN ANTRIM, Appellant, v. WILLIAM S. SPEER, Appellee
• Court: Kansas Supreme Court

299 P. 643

133 Kan. 297

GLENN ANTRIM, Appellant, v. WILLIAM S. SPEER, Appellee

No. 29,959

Supreme Court of Kansas

June 6, 1931

Decided January, 1931.

Appeal from Kingman district court; GEORGE L. HAY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

AUTOMOBILES--Collision at Intersection--Contributory Negligence. Under the facts as disclosed in the opinion it is held that one who drove his car in front of a rapidly approaching car at the intersection of two roads, when by observation he could have told that he did not have time to get across the road without a collision is guilty of contributory negligence.

S. S. Alexander and H. E. Walter, both of Kingman, for the appellant.

Clark A. Wallace and Paul R. Wunsch, both of Kingman, for the appellee.

OPINION

SMITH, J.:

This is an action for damages suffered when an automobile driven by plaintiff collided with one driven by defendant. Judgment was for defendant. Plaintiff appeals.

The plaintiff was driving west about 8:30 o'clock in the morning on a township road. The defendant was driving south upon a county road, the main highway between Cleveland and Spivey in Kingman county. At the intersection of these two roads the cars collided. It was daylight and the roadway was dry. Each party had the opportunity of a full view of the road on each side for more than a quarter of a mile before reaching the intersection. Both drivers were badly injured and both cars badly wrecked. The jury returned a verdict for defendant and answered special questions as follows:

"1. At what rate of speed do you find plaintiff's car was traveling as it entered the intersection? A. Five miles, approximately.

"2. Did the plaintiff, prior to his entering the intersection, see the defendant approaching from the north? A. Yes.

"3. If you answer the above question in the affirmative, state: (a) How far east of intersection plaintiff was when he saw defendant. A. Twenty-five feet east of center of intersection.

"(b) How far north of intersection defendant was when seen by plaintiff. A. Approximately 600 feet.

"4. At what rate of speed do you find plaintiff's car was traveling at the time of the collision? A. Approximately ten miles per hour.

"5. If you answer question No. 2 in the affirmative, state whether or not plaintiff observed the approximate rate of speed at which defendant was traveling. A. Yes.

"6. If you answer the above question in the negative, state what, if anything, prevented plaintiff from observing and knowing the approximate rate of speed at which defendant was actually traveling. A.

"7. Did plaintiff, at or immediately before entering the intersection of highways, look to the north for approaching cars on the county highway? A. Yes.

"8. If you answer the above question in the affirmative, state: (a) State distance defendant's car was north of point of collision. A. Approximately 600 feet.

"(b) Rate of speed defendant's car was then traveling. A. Approximately fifty miles per hour.

"(c) State what, if anything, prevented plaintiff then having a full and unobstructed view of defendant's car. A. Nothing.

"9. If plaintiff had been looking for approaching cars on the intersecting highway and had his own car under control, what, if anything, would have prevented said plaintiff from stopping his car or turning to the left and thereby have avoided the collision? A. Nothing.

"10. State fully what acts of negligence, if any, you find to have been the direct and proximate cause of plaintiff's injury and damage. A. Having seen defendant's automobile approaching at a high rate of speed he willfully and neglectfully drove his automobile in front of defendant's automobile. With due care he could have prevented the collision.

"11. If you find for the plaintiff, state what, if anything, you allow on the following items: (None of 11 answered.)

"12. Did the plaintiff, Antrim, slow down and substantially stop his car immediately prior to entering the intersection of the roads at the point of collision? A. Yes.

"13. What, if anything, was there to have prevented the defendant, Speer, from observing the automobile of the plaintiff, Antrim, at a sufficient distance to have avoided the collision? A. Nothing.

"14. At what rate of speed was the defendant driving the car used by him at the point of collision? A. Approximately fifty miles per hour."

Appellant filed a motion to set aside the answer to questions 5, 9 and 10 on the ground that the answers to the questions were contrary to and not supported by the evidence. This motion was denied by the trial court and appellant argues here that it should have been sustained. He argues that the findings of the jury with the above questions stricken out would show as a matter of law that the plaintiff was not guilty of contributory negligence.

As to the answer to question No. 5, the plaintiff testified that when he reached the intersection he stopped, looked up and down the road and observed defendant's car coming. Of course, if he saw it coming he could tell approximately how fast it was coming and that's all the jury meant by their answer to that question.

As to the answer to question No. 9, the record fails to disclose how the jury could have answered it in any other way.

The answer to question No. 10 is objected to further in the brief of appellant because it states a conclusion rather than an ultimate fact. The rule is that an objection that an answer is a mere conclusion...