Atkinson v. Wiard

• Decision Date: 25 January 1941
• Docket Number: 34994.
• Citation: 109 P.2d 160,153 Kan. 96
• Parties: ATKINSON v. WIARD et al.
• Court: Kansas Supreme Court

109 P.2d 160

153 Kan. 96

ATKINSON v. WIARD et al.

No. 34994.

Supreme Court of Kansas

January 25, 1941

Syllabus by the Court.

Defendants by proceeding with second trial, acquiesced in order granting plaintiff's motion for a new trial, and could not thereafter urge the granting of the new trial as error on appeal from judgment in the second trial.

Where attention of plaintiff's counsel was called to fact that one of jurors was carrying a package into jury room and after verdict for defendant, plaintiff's counsel by questioning juror discovered that juror had taken into jury room a model of machine which caused injury, counsel by failing to call attention to the package did not waive right to ask for new trial on account of "misconduct" of juror.

Where trial court is dissatisfied and cannot approve a verdict, it should order a new trial.

In action for injuries to passenger in airplane merry-go-round in which passengers rode in seats, resembling airplanes suspended from long rods, petition was sufficient without alleging specific acts of negligence, since defendant owners possessed knowledge of manner in which device operated and plan of construction not available to ordinary passengers.

In action for injuries to passenger of airplane merry-go-round in which there was evidence that operator of device had left post and was not there to stop machine when plaintiff appeared to be in danger, giving of instruction on "last clear chance" theory was not error.

Where evidence disclosed that injuries caused by being dragged head down when airplane merry-go-round broke caused plaintiff to lose $400 time, and there was evidence of pain and suffering, verdict awarding plaintiff $1,000 did not disclose passion and prejudice, notwithstanding no hospital or doctor's bill was produced in evidence.

In action for injuries to passenger in airplane merry-go-round, evidence that part of plane became unhooked, caught passenger's foot, and dragged him head down around the circuit of the machine more than once, held sufficient to sustain verdict for plaintiff.

Trial court has wide discretion in allowing cross-examination of witnesses for purpose of enabling jury to judge their credibility.

In personal injury action, it was not prejudicial error to refuse to strike from record questions and answers on cross-examination of witness for defendants which showed witness to be a citizen of Germany, where questions were asked solely to enable jury to judge credibility of witness.

In personal injury action, reference in argument of plaintiff's counsel to German citizenship of witness for defendants was cured by instruction of trial court.

1. In an action for personal injuries, the trial court ordered a new trial on the motion of plaintiff on account of misconduct of a juror; the parties proceeded to a second trial, which resulted in a verdict and judgment for plaintiff. Held, that by proceeding with the second trial the defendants acquiesced in the order for a new trial, and could not afterwards urge the granting of the new trial as error on appeal from the judgment in the second trial.

2. In an action such as that described in the foregoing paragraph of the syllabus, the attention of counsel for plaintiff was called to the fact that one of the jurors was carrying a package into the jury room; a few hours later a verdict for defendant was returned and by questioning a juror counsel brought out the fact that the juror had made a model of the machine for the jury, which model was the subject matter of the action. Held, that counsel did not by failing to call attention to the package waive his right to ask for a new trial on account of misconduct of a juror.

3. Where a trial court is dissatisfied and cannot approve a verdict, it should order a new trial.

4. In an action for personal injury alleged to have been sustained by a passenger on an amusement device, which was operated in a similar manner to a merry-go-round, except that the passengers rode in seats built to resemble airplanes, fastened to long rods, the other end of which was fastened to the top of a tall pole, the seats of which rose eight or ten feet from the ground when force was applied to the center pole, it is held that it was not necessary that the petition allege specific acts of negligence on the part of the defendants.

5. In an action such as that described in the fourth paragraph of this syllabus, the record is examined and it is held that there was no error in giving an instruction on the theory of the last clear chance.

6. The trial court has wide discretion in allowing cross-examination of witnesses for purposes of enabling the jury to judge the credibility of the witness. The record is examined and it is held that it was not prejudicial error to refuse to strike from the record questions and answers which showed the witness to be a citizen of Germany.

7. In an action such as that described in the fourth paragraph of this syllabus, the record is examined and it is held that the verdict was not given under the influence of passion and prejudice and was supported by the evidence, and the reference to the argument of counsel to the German citizenship of a witness was cured by an instruction of the trial court.

Appeal from District Court, Wyandotte County, Divisions Nos. 1 and 3; Edward L. Fischer and Harvey J. Emerson, Judges.

Action by George W. Atkinson against L. D. Wiard and another, doing business as Lakewood Park, for personal injuries. Judgment for plaintiff, and defendants appeal.

Louis R. Gates, of Kansas City, and Inghram D. Hook and Harry Thomas, both of Kansas City, Mo., for appellants.

Max L. Frederick, of Leavenworth, and J. H. Brady and N. E. Snyder, both of Kansas City, for appellee.

SMITH Justice.

This is an action for personal injuries. Judgment was for plaintiff. Defendants appeal.

A decision on the main point raised by defendants requires a discussion of what happened at a former trial. The petition alleged that plaintiff was injured while riding in a merry-go-round operated by defendants; that this device was of a type where the passengers sit in seats constructed to resemble airplanes attached to steel poles, the other end of which was attached to the top of another pole and when the force was applied the whole device whirled and the centrifugal force caused the seats to rise a distance off the ground of from eight to ten feet and the occupants were supposed to get the impression of riding an airplane. The petition further alleged that while plaintiff was riding this device, and while the box in which he was seated was a considerable distance off the ground, by some means unknown to him the front end of the plane in which he was riding was caused to become loosened, the front end of the box fell, the foot of the plaintiff was caught and he was dragged on the ground during several revolutions while the machine was being brought to a stop; that his foot finally came loose and he fell to the ground and then parts of the machine bumped and hit him. The petition alleged that the plaintiff sustained severe injuries. The petition also alleged that on the occasion in question the machine was in charge of a young man, who after the machine had been started in motion, left the seat of control and went to a ticket office, a distance of twenty or thirty feet.

The defendants first demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was overruled. Defendants then filed their answer in which they alleged a general denial and that the proximate cause of the injuries of plaintiff was his negligence in that he knew, or should have known, that patrons riding the devices should remain seated, and notwithstanding this as the seat in which he was riding rose in the air he, in disregard of his own safety, stood up in his seat, and when he was told to sit down by the operator of the machine remained standing and threw his body from side to side, causing the airplane to sway, and the plaintiff lost his balance and fell from the airplane.

The reply was a general denial.

At the first...