Barker v. Seber

• Decision Date: 05 July 1941
• Docket Number: 35046.
• Citation: 114 P.2d 791,154 Kan. 24
• Parties: BARKER v. SEBER.
• Court: Kansas Supreme Court

114 P.2d 791

154 Kan. 24

BARKER v. SEBER.

No. 35046.

Supreme Court of Kansas

July 5, 1941

Syllabus by the Court.

In action by pedestrian for injuries sustained when struck by an automobile while crossing a state highway in the country, it was reversible error to instruct that it was the pedestrian's duty to stop and yield the right of way to oncoming automobile, where pedestrian, when he first saw the oncoming automobile, was in a place of danger on the highway and he hurried to get to a place of safety and almost did so when struck. Gen.St.Supp.1939, 8-557.

Appellant was not precluded from urging that giving of instruction was error, merely because he did not offer any instruction to cover the subject in general, where appellant excepted to the instruction and called trial court's attention to the instruction.

In an action for injuries alleged to have been sustained when plaintiff was struck by an automobile being driven by defendant as plaintiff was crossing a state highway, the record is examined, and it is held that under the surrounding facts and circumstances it was error for the trial court to instruct the jury that it was the duty of the plaintiff to stop and yield the right of way to an oncoming automobile.

Appeal from District Court, Leavenworth County; James H. Wendorff Judge.

Action by J. E. Barker against John Ebert Seber, to recover for injuries sustained by the plaintiff when he was struck by an automobile driven by the defendant. From a judgment in favor of the defendant, the plaintiff appeals.

Judgment reversed with directions to grant the plaintiff a new trial in accordance with opinion.

Elmer E. Martin, of Kansas City, and Malcolm McNaughton, of Leavenworth, for appellant.

Benjamin F. Endres, of Leavenworth, for appellee.

SMITH Justice.

This was an action for damages alleged to have been sustained when plaintiff, a pedestrian, was struck by an automobile being driven by defendant. Judgment was for the defendant. Plaintiff appeals.

The plaintiff lived west of Kansas City on highway 40. This is a concrete highway composed of four traffic lanes, two on the south for eastbound traffic and two on the north for westbound traffic. Each pair of traffic lanes is twenty feet wide. The eastbound traffic lanes and the westbound traffic lanes are separated by a space of about three feet, which is not paved, and which is higher than the bed of the highway. The plaintiff lived on the north side of this highway. On the day of the injury he had been driven in a car from Topeka to his home. He had arrived at his home between six and seven p m. on November 14, 1937. The car in which he was riding had been driven from the west a little past the driveway of his home and had pulled off the pavement and parked on the shoulder south of the slab in front of his home and stopped headed east. In order for him to reach his home it was necessary that he cross all four traffic lanes. The plaintiff was seventy-one years old. He and the young man who had driven him from Topeka walked around the rear of the car in which they had been riding. They first approached the two traffic lanes for eastbound traffic. They looked to the east and to the west; did not see any cars coming and crossed those traffic lanes and reached the unpaved portion in the middle of the highway in safety. The young man was walking to the right of the plaintiff and carrying plaintiff's grip and cane. This put the young man to the east of plaintiff. Plaintiff testified that as they looked east before they started to cross the two north traffic lanes they could not see any cars coming and started across; that when they got about halfway across the north slab the young man started to go faster; that as they got to the north edge of the north slab the young man stumbled and fell down; that just as plaintiff had one foot off the slab and the other raised to step he was struck down; he started to get up, but his right leg was broken; he said he never did see any automobile.

On cross-examination he said that when he and the young man were two-thirds across the north side of the highway the young man started to pull him along. The young man testified that before he started into the two north traffic lanes he looked to the east from which cars would ordinarily be coming in that traffic lane, and saw no cars coming; that when he had entered the north traffic lane he did not know exactly how far he saw some headlights coming over the top of the hill; that he quickened his pace a little to get out of the way of the car; that he started running and pulling the plaintiff behind him; that he stumbled just as he reached the north edge of the pavement, not knowing the shoulder was a little higher than the pavement; that he felt the swish of a car and knew it had gone past just as they reached the shoulder.

Another young man who was in the automobile in which plaintiff had been riding testified that he saw the lights of the car coming just as plaintiff and the young man were in the north half of the highway past the center, and the car was then between five and six hundred feet east of them just over the crest of the hill and was bearing down on him rapidly; that there was only one car approaching from the east; he said it looked like the young man and the plaintiff fell just as the car passed them. He testified that the car continued on to the west beyond the mailbox, which was west of plaintiff's driveway; that the mailbox was seventy-five feet west of where they fell; that someone picked up plaintiff's shoe about fifteen or twenty feet west of the mailbox.

The defendant testified that he was going about forty-five or fifty miles an hour; that he was following a car that had just passed them; that there were lights on the cars coming from the west and that there were two cars he remembered coming from the west; that he never noticed anything in front of him until he was right on top of a black object that had just entered the north half of the lane, which was ten feet on the north side. He evidently meant by this the north half of the traffic lane for westbound traffic; that he applied his brakes and turned to the south. He testified as follows: "Of course if I would drive straight ahead like I belonged in the north half in my driving lane, why, I would hit whatever it was head on with the front of the car. As it was I hit it with the, or something hit the rear fender of the car ***." He also testified: "Of course they were,--oh, I would say four or five feet from the dividing line in the center of the north lane toward the center of the north,--that is where I first noticed this black object."

A verdict was returned for the defendant. Twenty-eight special questions were answered by the jury. Motion for new trial was filed and denied. Plaintiff has appealed.

Plaintiff argues that the trial court erred in giving the following instruction: "3. In this case, the evidence shows beyond dispute, in fact, it is conceded by both the plaintiff and defendant, that J. E. Barker, the plaintiff, started to cross over the north lane of Highway 40, from south to north, at a point other than a marked cross-walk, and it is the law of Kansas that a pedestrian crossing a public roadway at a point other than a marked cross-walk shall yield the right of way to all vehicles upon the roadway, and the driver of an automobile has a right to rely upon it that a pedestrian will obey the law and yield the right of way to him and as he approached; if you find from the evidence in this case that the plaintiff was being assisted by one Charles Sessions, Jr., in crossing said highway at a point other than within a marked crosswalk, and before crossing or while in the act of crossing over said highway, they, or either of them observed a motor car approaching from the east, and toward the point where they were crossing, it was their duty to stop and yield the right of way to the approaching vehicle, and for them or either of them to fail to do so, under the circumstances testified about in this case, would be a violation of the law of Kansas and negligence on the part of the plaintiff."

The plaintiff argues that this instruction took the question of whether ...