Barshfield v. Vucklich

• Decision Date: 09 April 1921
• Docket Number: 23,091
• Citation: 197 P. 205,108 Kan. 761
• Parties: C. P. BARSHFIELD, Appellee, v. M. M. VUCKLICH, Appellant
• Court: Kansas Supreme Court

197 P. 205

108 Kan. 761

C. P. BARSHFIELD, Appellee, v. M. M. VUCKLICH, Appellant

No. 23,091

Supreme Court of Kansas

April 9, 1921

Decided January, 1921.

Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. AUTOMOBILES--Driving at Illegal Rate of Speed--Collision--Damages--Demurrer to Evidence Properly Overruled. In an action to recover damages resulting from the defendant driving his automobile at an illegal rate of speed against the one in which plaintiff was riding, the evidence of the negligence of the defendant is held to be sufficient to sustain the action of the court in overruling the demurrer to plaintiff's evidence.

2. SAME--Driving at Illegal Rate of Speed is Negligence--Must Be Proximate Cause of Injuries. The running of an automobile within a city at an excessive rate of speed in violation of a statute is of itself negligence, but the wrongdoer is only liable for such injuries as are the proximate result of the illegal speed; and it is held that this rule was correctly applied by the trial court.

3. SAME -- Negligence -- Damage to Automobile -- Measure of Damages. Ordinarily the proper rule for measuring the damages to an automobile resulting from a negligent collision is the difference between the value of the automobile before the injury and its value after the accident, and when that theory is applied the cost of repairs cannot be included in the damages awarded.

4. SAME--Value of Injured Automobile--Competent Witness. One who was accustomed to handling cars of the kind injured, had bought and sold several of them, and was fairly familiar with their value, is a competent witness to give an opinion as to the value of the injured automobile.

5. SAME--Negligence--Other Acts of Similar Negligence Shown on Cross-examination of Defendant. On an issue as to the negligence of a driver of an automobile it is ordinarily not admissible to show acts of negligence on other occasions, but where the defendant has testified as to careful driving, a cross-examination within reasonable limits, as to whether he had not at other times been reprimanded and arrested for fast driving, may be permitted; and the extent of the cross-examination of the defendant in this case is not deemed to be a ground for a reversal of the judgment.

6. SAME--Damages Not Excessive. The damages awarded plaintiff are held not to be excessive.

A. J. Herrod, and H. S. Roberts, both of Kansas City, for the appellant.

P. W. Croker, of Kansas City, W. W. McCanles, F. M. Kennard, and S. L. Trusty, all of Kansas City, Mo., for the appellee.

OPINION

JOHNSTON, C. J.:

This action was brought by C. P. Barshfield to recover damages sustained by the act of M. M. Vucklich in negligently running his automobile against one in which plaintiff was riding, injuring him and damaging his automobile. The plaintiff prevailed and defendant appeals.

The collision occurred at the intersection of Seventh and Ann streets in Kansas City. Plaintiff was driving his car south on Seventh street and as he approached Ann street at a speed of six miles per hour he signaled that he was about to turn into that street. At that time the defendant, who was driving his car from the south on Seventh street at the alleged speed of thirty-five miles per hour, drove his car into that of the plaintiff at the intersection of the streets, overturning plaintiff's car and throwing him out on the pavement.

Error is assigned by defendant on the refusal of the court to sustain a demurrer to plaintiff's evidence. There is a contention that there was no evidence of negligence by the defendant, no evidence that the car was being driven at an excessive rate of speed, and that the plaintiff himself was negligent in turning his car in front of that of the defendant. The plaintiff did not undertake to give the rate of speed at which the defendant was driving, but he did testify that while he was driving thirty or forty feet at a rate of six miles per hour, the defendant drove his car two hundred feet, showing that defendant was driving at a speed of at least thirty miles per hour. The statute provides that no person shall operate a motor vehicle within a city at a speed greater than twelve miles an hour, and further that it shall not be driven across an intersection of streets within a city at a speed exceeding six miles per hour. (Laws 1917, ch. 74, § 5.) The plaintiff had a right to assume that the defendant was driving at a legal rate of speed, and if the defendant had been driving at that rate the plaintiff could have made the turn in safety. The proof of negligence is deemed to be sufficient.

Complaint is made of an instruction to the effect that if either plaintiff or defendant violated the statute relating to speed, it would constitute negligence. The running of a car at an illegal rate of speed is of itself a violation of the law and negligence, but of...