Baldwin v. Devlin

• Decision Date: 05 March 1932
• Docket Number: 30349.
• Citation: 134 Kan. 844,8 P.2d 320
• Parties: BALDWIN v. DEVLIN. [*]
• Court: Kansas Supreme Court

8 P.2d 320

134 Kan. 844

BALDWIN v. DEVLIN. ^[*]

No. 30349.

Supreme Court of Kansas

March 5, 1932

Syllabus by the Court.

Contributory negligence of bicycle rider, who attempted to make right turn in front of automobile, held question for jury.

In action for death of bicycle rider knocked down, dragged, and eventually run over by automobile, submission of last clear chance doctrine held not error.

In an action for the wrongful death of a workman who, while riding a bicycle, was struck, knocked down, dragged, and eventually run over and killed by defendant's automobile, the record examined and held that the deceased workman was not guilty of contributory negligence as a matter of law, and held also that assuming he was guilty of negligence the question of "last clear chance" was not erroneously nor unfavorably to defendant submitted to the jury.

Appeal from District Court, Shawnee County, Division No. 1; George A. Kline, Judge.

Action by Glenn Baldwin against Laura E. Devlin. Judgment for plaintiff, and defendant appeals.

Guy L Hursh, of Topeka, for appellant.

Lester M. Goodell, Randal C. Harvey, and Paul L. Harvey, all of Topeka, for appellee.

DAWSON J.

This was an action to recover for the death of C. L. Baldwin, who was struck, knocked down, dragged, run over, and killed by defendant's automobile while he was riding a bicycle one morning to his place of employment.

The accident happened on Seward avenue, in the northeastern part of Topeka. That street runs east and west. Another street, Woodruff, comes into Seward from the south, but does not extend further north. C. L. Baldwin, a Santa Fé shop worker, resided some three blocks northeast of the intersection of Seward and Woodruff. He was accustomed to ride a bicycle to his work. he would come down to Seward avenue and proceed westward for a block or two on the north side of Seward, until he came to Woodruff, where he would turn south and proceed to his place of employment a block or two further south.

On the morning of November 19, 1929, the defendant, who had a Buick automobile, had gone to the western part of the city to carry three school teachers to their classes in a parochial school a block or two east of the place of accident. Defendant was proceeding eastwardly on the south side of Seward avenue approaching Woodruff, as Baldwin came from the east on the north side of Seward; and as he veered to the south at the intersection of these streets he and his bicycle were caught and momentarily carried on the front bumper of the Buick then he fell and was rolled or dragged some distance by defendant's car, and then it ran over him. Baldwin was picked up in the street and carried to a nearby fire station where he died.

Plaintiff's petition contained the usual recitals of fact in such cases, and charged defendant with negligence in various respects which brought about the death of Baldwin.

Defendant's answer contained a general denial, and alleged that Baldwin's death was caused by his own negligence in failing to look out for approaching automobiles, and by suddenly and without warning turning southward at Woodruff in front of defendant's automobile and so close to it that the collision was unavoidable. She also charged the deceased with contributory negligence.

Both parties charged violation of city traffic ordinances. Plaintiff's reply supplemented the allegations of his petition with a charge of wantonness on the part of defendant because of her alleged failure to use even slight care to save Baldwin from his imminent peril after the first impact of her car with his bicycle.

On these issues the cause was tried at length. The evidence developed some sharp disputes of fact, which were resolved by the jury in their answers to special questions which must be set down here:

"1. At what point did the automobile and bicycle collide? (In answering this question fix the point of collision either with reference to the center of the intersection of Woodruff and Seward Avenues, or the east curb line of Woodruff and the south curb line of Seward.) Answer. At or near center of intersection of Woodruff Ave. and east traffic way Seward Ave.

"2. Was the deceased negligent in the operation of his bicycle? Answer. No. ***

"5. Was the defendant negligent in any respect in the operation of her automobile? Answer. Yes.

"6. If you answer the last preceding question in the affirmative, then state in what particular defendant was negligent. Answer. Negligent in observing traffic and in the operation of her automobile.

"7. In driving along Seward Avenue at and immediately prior to the collision, did the defendant operate her automobile in a reckless manner and in wanton disregard of the rights of others upon the highway? Answer. Yes.

"8. Was the collision in question unavoidable? Answer. Yes.

"9. Immediately after the collision, did the defendant use ordinary and reasonable care, under the circumstances, to avoid inflicting further injury upon the deceased? Answer. No.

"10. If you answer the last foregoing question in the negative, then state:

"(a) Wherein the defendant failed so to do. Answer: Failing to properly apply her brakes.

"(b) Did such failure on her part contribute to the death of the deceased? Answer: Yes."

The general verdict was in favor of plaintiff. After disposition of the usual motion for a new trial, judgment was entered for plaintiff.

Defendant appeals, with a formal assignment of errors which her counsel reduce to two questions of law; whether the undisputed evidence disclosed contributory negligence on the part of the deceased, and, if so, was defendant liable under the doctrine of the "last clear chance."

To support defendant's contention that Baldwin's negligence contributed to the fatal accident, defendant directs our attention to the testimony of witnesses who deposed that as Baldwin proceeded westward along the north side of Seward avenue and "as he neared Woodruff he gradually got over near the center of Seward"; that there was then nothing to prevent him seeing defendant's...