Baker v. Western Cas. & Sur. Co.

• Decision Date: 06 March 1948
• Docket Number: 36930.
• Citation: 190 P.2d 850,164 Kan. 376
• Parties: BAKER v. WESTERN CASUALTY & SURETY CO. et al.
• Court: Kansas Supreme Court

190 P.2d 850

164 Kan. 376

BAKER v. WESTERN CASUALTY & SURETY CO. et al.

No. 36930.

Supreme Court of Kansas

March 6, 1948

Appeal from District Court, Shawnee County, Division No. 3; Dean McElhenny, Judge.

Action by Ralph Baker against the Western Casualty & Surety Company Fort Scott, Kansas, and others for injuries sustained in collision between two motor trucks. Judgment for defendants and plaintiff appeals.of contributory negligence barring recovery.

Syllabus by the Court.

1. Under our statute, G.S.1935, 60-2909, fifth, when the trial court gives general written instructions fairly presenting the issues in the case as disclosed by the evidence, if a party desires additional instructions he must request them in writing, otherwise failure to give such instructions will not be regarded as reversible error.

2. An objection the jury did not fairly and definitely answer a special question and that the answer made thereto was intended to evade the issue is not available as error on appellate review when the answer to such question is in harmony with the general verdict and it appears no request was made that the jury be required to make it more specific and definite.

3. Special findings which are properly subject to review on appeal must be liberally construed with the view of ascertaining their intended meaning.

4. The rule, that in actions to recover damages for injuries sustained in automobile accident cases contributory negligence bars recovery, is of no avail to a defendant whose wanton conduct or wantonness is the direct and proximate cause of such injuries.

5. To constitute wantonness in action, resulting in personal injury to another in a motor vehicle collision, it must appear the conduct of the person so charged was such that he realized the imminence of injury to the other from his acts and refrained from taking steps to prevent such injury because indifferent to whether it occurred or not.

6. In an action for damages for personal injuries sustained in a collision of two motor trucks on the highway wherein the jury, in its answers to special interrogatories, found that negligence of both drivers of the vehicles involved was s substantial factor and a contributing cause in bringing about plaintiff's injuries and returned a general verdict of favor of defendants, the record is examined and it is held (1) The evidence failed to establish wanton conduct or wantonness on the part of the driver of the defendants' involved motor vehicle; (2) the trial court did not err in the instructions given or in refusing the instructions requested; (3) under facts and circumstances disclosed by the pleadings and the evidence the jury's response 'improper driving' to a special question submitted was a sufficient finding of contributory negligence on the part of the plaintiff; (4) such finding was sustained by substantial competent evidence; (5) the general verdict was not contrary to the evidence, and (6) plaintiff's motion for a new trial was properly overruled.

Walter T. Chaney, of Topeka (Lawrence J. Richardson, of Topeka, on the brief), for appellant.

Allen Meyers, of Topeka (Philip C. Gault, Herbert A. Marshall, and Doral H. Hawks, all of Topeka, on the brief), for appellees.

PARKER Justice.

This is an action to recover damages for personal injuries sustained by the plaintiff in a collision of two motor trucks on a public highway.

Except as they define the issues the pleadings are of no importance and can be briefly summarized.

The petition states the defendants, W. E. Anderson, R. Joe Anderson, Stella F. Anderson and Helen G. Allen, hereinafter in the interest of brevity referred to as the defendants and later as the appellees, are partners doing business under the firm name and style of Anderson Brothers and authorized to engage in the business of a public motor carrier over U.S. Highway No. 24 at the place where the collision occurred.

It further states the defendant, Western Casualty & Surety Company, is such defendants' insurer against legal liability imposed upon them, resulting from accident by reason of use of their involved motor truck. It then charges, under circumstances and conditions there completely detailed and alleged to be negligent and wanton, that on the 17th day of September, 1945, the defendants' truck, while being operated in an easterly direction on U.S. Highway No. 24 by their employee, George Lawrence, was driven into and collided with the plaintiff's motor truck, which was proceeding east on such highway on the right or south side of the center of the paved slab, at a point about a mile east of Williamstown and at a time when defendants' truck was attempting to overtake and pass the vehicle plaintiff was driving with the result plaintiff sustained serious injuries to his damage in the amount therein stated.

To the petition the defendants, including the insurer, filed a joint answer conceding their business status and relationship to be as stated by plaintiff, admitting the occurrence of the collision at about the time and place stated but specifically denying it was due to any negligence on their part, and charging that such collision and plaintiff's injuries were occasioned by and resulted from plaintiff's own contributory negligence.

Plaintiff's reply denies generally all averments of the answer contradicting allegations set forth in the petition.

The cause was tried to a jury which in due time returned a general verdict in favor of all the defendants together with its answers to six special questions. Judgment was rendered by the trial court in accordance with the verdict. Plaintiff then filed a motion for a new trial. When this was overruled he perfected an appeal and now specifies the trial court erred (1) in refusing to submit his requested instructions to the jury (2) in approving the general verdict and answers to special questions and (3) in overruling his motion for a new trial.

Some of the contentions advanced in support of the errors assigned require an analysis of the evidence adduced at the trial with respect to the conditions and circumstances under which the accident occurred. We have carefully examined the record for the purpose of ascertaining what was presented to the jury on that subject by the parties.

The factual situation, up to the happening of the events directly responsible for the accident, is not in dispute and can be stated thus: Highway No. 24 where the collision occurred, is a concrete slab, eighteen feet wide, with earthen shoulders four feet wide on each side. The center of the slab is marked with a black line and the road is so straight and level that traffic can be seen for a considerable distance from either direction. At the time of the accident no vehicles, save the two involved, were in sight. The day was clear and the road dry. The truck the appellant was driving was a 1934, one and one-half ton, Chevrolet flat bed truck. Appellees' vehicle was a two and one-half ton, snub nosed model, van type International truck, and was being driven by George Lawrence, one of their employees, who was accompanied by another employee, Donald Lane, as a helper.

Just how the accident happened is a matter of serious controversy and had best be related by specific reference to the testimony of the particular witnesses produced by the respective parties.

Appellant's testimony is to the effect he was driving the Chevrolet easterly along the highway at about 25 miles per hour on the right hand side of the road and to the south of the center line of the slab when, without having heard any warning signal and being wholly unaware of any traffic approaching from the rear, he suddenly felt a jar or bump and remembers nothing further until he awakened in a doctor's office some time later. His statement regarding the location of his truck at the moment he felt the collision is corroborated by one other witness who based his opinion upon an examination of the highway after the accident. This testimony, of course, is supplemented by other evidence relating to injuries suffered and damages sustained but it need not be related because questions pertaining to its sufficiency are not involved.

Appellees' evidence consists principally of testimony of Lawrence, the driver, and Lane, the helper. The story told by these two witnesses is substantially the same, and, so far as their direct examination is concerned, can be stated thus: They were driving along the highway in the International truck in an easterly direction at a speed of from 37 to 38 miles per hour. As they approached appellant who, in their estimation was driving at a speed of 20 to 25 mile per hour, and when they were about 50 feet behind him, Lawrence gave two sharp blasts of the truck's horn, to which appellant gave no apparent attention. Appellant was then crowding the center line of the slab or slightly over the wrong side of such center line. After thus sounding the horn Lawrence swung over to the left side of the road to pass the Chevrolet truck. When about 20 feet to its rear Lawrence again sounded the horn. He continued to pull to the left, preparatory to passing, and when the cab of the International truck was even with or slightly ahead of the rear of the Chevrolet he sounded the horn again. At this point the International was over to the extreme left side of the road with its left rear wheels riding the shoulder of the road at the very edge of the ditch. The Chevrolet had continued to veer to the left and was almost astraddle the center line of the pavement, its left wheels being about four feet over the left side of the middle of the road. In this situation Lawrence, who had not decreased the speed of his truck, did not apply his brakes because of the danger in applying brakes to a...