Armstrong's Estate, In re

• Citation: 181 Kan. 171,311 P.2d 281
• Decision Date: 11 May 1957
• Docket Number: No. 40348,40348
• Parties: In the Matter of the ESTATE of Clark J. ARMSTRONG, also known as C. J. Armstrong, deceased. Arley D. HAGA, Appellant, v. Harold L. MOSS, Administrator of the Estate of Clark J. Armstrong, deceased, Appellee.
• Court: United States State Supreme Court of Kansas

Page 281

311 P.2d 281

181 Kan. 171

In the Matter of the ESTATE of Clark J. ARMSTRONG, also known as C. J. Armstrong, deceased Arley D. HAGA, Appellant, v. Harold L. MOSS, Administrator of the Estate of Clark J Armstrong, deceased, Appellee.

No. 40348.

Supreme Court of Kansas.

May 11, 1957.

Syllabus by the Court

1. The record examined in a demurrer to petitioner and appellant's evidence in an automobile negligence action, and held--the court erred in sustaining the demurrer to the evidence. There was sufficient evidence to support the cause of action of the petitioner and the contributory negligence of petitioner was not clearly shown.

2. In ruling on a demurrer to the evidence an appellate court does not weigh or compare contradictory evidence but accepts all evidence as true and gives it the benefit of all inferences that may properly be drawn therefrom, and considers only such portions thereof as are favorable to the party adducing it.

3. On a demurrer to evidence courts do not consider conflicting evidence on direct and cross-examination of the same witness but only evidence favorable to the party adducing it.

4. To sustain a demurrer to the evidence negligence or contributory negligence must clearly appear from the evidence introduced.

5. Following Sawhill v. Casualty Reciprocal Exchange, 152 Kan. 735, 107 P.2d 770 and Briggs v. Burk, 174 Kan. 440, 257 P.2d 164 negligence may be established by circumstantial evidence. The physical facts and circumstances of a motor vehicle collision may be sufficiently clear to enable the triers of fact to form a judgment of how the collision occurred and who was at fault, although there was no eyewitness to the collision.

Payne H. Ratner, Jr., Wichita, argued the cause, and Payne H. Ratner, Louise Mattox, Russell Cranmer, Dale B. Stinson, Jr., Cliff W. Ratner, William L. Fry, A. Wayne Murphy, Ray A. Overpeck, Bernard V. Borst, D. Clifford Allison, Gerald D. Lasswell, Wichita, and E. E. Pedroja, Eureka, were with him on the briefs, for appellant.

Harold G. Forbes, Eureka, argued the cause, and Thos. C. Forbes and George Forbes, Eureka, were with him on the briefs, for appellee.

HALL, Justice.

This was an action to recover damages for negligence in the operation of an automobile. The trial court sustained a demurrer to the evidence and the plaintiff appeals.

No important issue is raised as to the pleadings.

This action was filed in the probate court by a petition of demand against decedent's estate with appropriate request that the matter be transferred and tried in the district court pursuant to G.S.1953 Supp., 59-2402a. The answer is a written defense to the allowances of the claim in demand against the estate.

In summary the petition alleged the plaintiff was proceeding west on a county road north of Eureka, Kansas. Loose gravel was piled parallel to the north shoulder of the road forming a ridge 4 to 5 feet wide and 1 1/2 to 2 feet high. The weather was clear. While the petitioner was proceeding westerly along the road and occupying the north half, or right hand, of the roadway the automobile operated by the decedent approached from the west proceeding east. The decedent's automobile suddenly turned to the left, or north, and crossed the center line. The accident resulted. The petition also alleges the decedent was 79 years old and suffered infirmities and disabilities.

The written defenses denied generally and specifically allegations of the petitioner and set up the contributory negligence of petitioner.

Upon these issues joined, the matter came on for trial to a jury. The plaintiff introduced his evidence and rested. The defendant demurred to the evidence and, after consideration of argument on the issues raised by the demurrer, the court sustained the demurrer, discharged the jury and disallowed plaintiff's claim against the estate of defendant with costs to the plaintiff. After overruling of post trial motions, plaintiff takes this appeal.

Plaintiff and appellant makes five specifications of error but urges only a consideration of the demurrer to the evidence.

Following the well established rule of this court, a consideration of such demurrer requires a review of the evidence to determine whether or not there was sufficient evidence to support the cause of action of the petitioner.

An examination of the plaintiff's evidence shows:

There were no eyewitnesses to the accident other than the petitioner.

In support of the petition plaintiff introduced the testimony of Mr. Edward E. Arnold. Mr. Arnold testified that he worked on an oil lease near the scene of the accident and drove the road where the accident occurred twice a day five days a week. On the day of the accident he was driving the road and came up behind decedent's car. He said, 'There were two people in this automobile and I drove up behind them. They were going down the road and on the left side of the road part of the time and part of the time they would be on the right side. I didn't know what side he was going to drive on. I judge they were driving around 20 miles an hour * * *.' He attempted to pass decedent but decedent did not respond to his horn.

'Q. Did you honk it just once? A. No, continuously. I started to honk as soon as I started down the big hill. That was before I got to the intersection. After I got to the intersection I kept following this car, I wanted to get by and he never did get over.'

Arnold went on to say that he could observe perfectly as he had perfect vision. As he started around decedent's car, 'the car was three feet over on the left side of the black center line and he had to slow his car down and put it in second gear, straddling clear over the gravel bar, the wheels being clear on the left side of the road and possibly up the gravel bar, the wind row, to get around Armstrong.'

Arnold further testified that he could see several cars coming from the east, one of which was the Haga car.

'As I went around this car (decedent's), this '49 black Chevrolet, I seen two elderly people, one a lady and one a man. The man was driving, I seen a cane between the man and the lady * * *.'

A Mr. John Runyan testified next for plaintiff. He was also an oil worker on his way home. He testified that he met the Armstrong car.

'Q. After you passed, or after you got by the first automobile you met on this route which was west of the driveway did you then meet another car approaching in an easterly direction while you were going west? A. Yes. He was over too close to our side of the road and we had to pull up in the edge of the gravel to get around him there. It was two-tenths of a mile west of the Grooms' drive-way where we got by the second automobile.

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'The Court: Which car was it you met when you were two-tenths of a mile west of the Groom driveway? A. Well, as near as I know, it was the Armstrong car. It was the second one we passed.'

Mr. Runyan was followed by a Mr. Al Baumgardner and a Mr. Merle Braymer both of whom were oil field workers and testified that they were traveling over the road at the approximate time of the accident and as to the condition of the road. Mr. Baumgardner testified that he too met a car which 'was driving pretty much on his side of the road and that he pulled over into the gravel ridge a foot or more'.

Mr. Braymer testified that Mr. Haga passed him and at that time Mr. Haga's speed did not seem unusual.

Mr. Charles B. Williams, Highway Patrolman, then testified that he arrived at the scene at 5:26 p.m. He said:

'The vehicles had not been moved * * *. The traveled portion was exactly 20 feet. The center of the traveled portion at that time was exactly 10 feet * * *. The vehicles were 9 feet apart. 7 feet 10 inches from the edge of the gravel winrow to the left rear wheel of the Armstrong vehicle. There were no skid marks behind the Armstrong vehicle when I arrived. Skid marks behind the Haga vehicle were 30 feet. The left skid marks of the Haga vehicle were 10 feet from the south edge of the gravel. The rear of the Haga vehicle swung very sharply to the north and the rear wheels struck the gravel winrow and it stopped. The entire front of both vehicles were damaged by the impact but the impact was on just about four-fifths of both automobiles. Of course, they pulled left to right.

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'Q. Was there anything at all from your investigation on that road or anything would prevent, as far as you could see the Armstrongs using the south half of the traveled portion of the road. A. No, it was clear.'

The counter abstract includes the following testimony of Trooper Williams:

'* * * the road was twenty-six feet wide and along the north side there was a gravel windrow which reduced the travel portion to twenty feet; the Armstrongs were driving a 1949 Chevrolet car and Haga was driving a 1953 Chevrolet car, and that the width of said cars was approximately six feet; 'Exhibits Five and Six' are scale models of the Armstrong and Haga cars, the Armstrong model being marked 'A' and the Haga car being marked 'H'; at the request of plaintiff's attorneys the highway patrolman drew an outline of the Haga car and the Armstrong car on plaintiff's 'Exhibit Two', which represented the position of the vehicles in the road immediately following the collision; after the accident the vehicles were nine feet apart; the left rear wheel of the Armstrong car was seven feet ten inches from the edge of the gravel windrow on the north side of the highway; the right rear wheel of the Haga vehicle was in the windrow; there were skid marks behind the Haga vehicle for thirty feet which ran parallel with the road, the south skid mark being ten feet south of the south edge of the windrow; there were no skid marks by the Armstrong vehicle; at the time of the impact the rear of the Haga vehicle swung sharply to the north and stopped; and the Armstrong car was knocked back west and slightly south for a distance of nine feet;

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'The...