Beye v. Andres

• Decision Date: 05 May 1956
• Docket Number: No. 39976,39976
• Citation: 296 P.2d 1049,179 Kan. 502
• Parties: Ida BEYE, Appellant, v. Martin Y. ANDRES, Appellee.
• Court: Kansas Supreme Court

Page 1049

296 P.2d 1049

179 Kan. 502

Ida BEYE, Appellant, v. Martin Y. ANDRES, Appellee.

No. 39976.

Supreme Court of Kansas.

May 5, 1956.

Rehearing Denied June 13, 1956.

Syllabus by the Court.

1. It devolves upon the party appealing to bring up a complete record of all matters upon which review is sought.

2. Unless an instruction to which an objection is made is a clear and prejudicial misstatement of the law, it can be reviewed only when other instructions which may or may not modify its intent and effect are made a part of the record, in order that all may be examined together.

3. The allowance or refusal of amendments to pleadings is within the sound discretion of the trial court, and it is only when there is a manifest abuse of that discretion that reversible error can be predicated thereon.

4. Where the defense of contributory negligence was not pleaded in defendant's answer, it was properly raised by his motion to amend to conform to the proof, when plaintiff's evidence clearly showed its relevancy.

5. In the absence of special findings, a general verdict in favor of a party imports a finding in his favor upon all issues in the case.

6. Although the negligence of a driver is not imputed to a guest, or passenger, it nevertheless is the duty of a guest, or passenger, to exercise reasonable care for his own safety and, where he has the same opportunity as a driver to observe the dangerous conditions and circumstances and fails to take any precautions whatsoever for his own safety until it is too late, he is guilty of contributory negligence which bars recovery.

7. In a vehicle collision case the record examined, and held, the court did not err (1) in permitting defendant to amend his answer to conform to proof, (2) in overruling plaintiff's motion for a new trial, and (3) in overruling plaintiff's motion for judgment notwithstanding the verdict.

Fred R. Vieux, Augusta, argued the cause, and Frantz G. Loriaux, Augusta, was with him on the briefs for appellant.

Milton Zacharias, Wichita, argued the cause, and Kenneth H. Hiebsch, Richard A. Render, and Albert L. Kamas, Wichita, were with him on the briefs for appellee.

WERTZ, Justice.

This was an action to recover damages for personal injuries resulting from an automobile collision occurring at an uncontrolled intersection of two county roads. From a general verdict and judgment in favor of the defendant, plaintiff appeals.

Appellant Ida Beye will be hereinafter referred to as plaintiff, and appellee Martin Y. Andres, as defendant.

The petition alleged plaintiff was riding in an automobile driven by her son, traveling west on the Harry Street Road about eight miles east of Wichita, where it intersects the north and south township road; that her son reduced the speed of the automobile to about 15 to 20 miles an hour and drove into the intersection. When the automobile in which plaintiff was riding arrived approximately midway in the intersection, the defendant driving north at a speed from 50 to 65 miles an hour on the township road entered the intersection and struck the automobile in which plaintiff was riding, injuring her, as fully set out in the petition. Plaintiff alleged defendant was guilty of negligence in failing to keep a lookout, excessive speed, in failing to keep his automobile under proper control when entering an intersection when the view to his right was obstructed by trees, fences and farm buildings, in failing to yield the right of way to cars approaching from his right, and in driving his car into the intersection after the car in which the plaintiff was riding had so entered. Plaintiff prayed judgment in a specified amount.

Defendant answered with a general denial and alleged that the driver of the car and plaintiff were engaged in a joint enterprise, or that he was the agent, and that he was guilty of specific acts of negligence which were the proximate cause of the accident. The reply was a general denial. On the pleadings thus joined, the respective parties presented their evidence and the case was submitted to a jury, which returned a general verdict for the defendant.

No special questions were submitted to the jury. Plaintiff filed a motion for a new trial on the ground of abuse of discretion of the trial court, erroneous rulings, erroneous instructions, passion and prejudice, that the verdict was contrary to the evidence, and filed a motion to set aside the general verdict. From an order of the trial court overruling the mentioned motions, plaintiff appeals.

Plaintiff first argues that the trial court erred in refusing to give certain of its requested instructions and in giving certain erroneous instructions. In the first place, plaintiff's abstract contains only instructions Nos. 3, 4, 11, 15 and 21 given by the trial court. We must assume that the trial court gave at least twenty-one instructions covering the issues presented in the case. It is contended by plaintiff that some of the instructions were too general and not sufficiently full, and that the trial court failed to define and apply the law to the evidence.

Where instructions are challenged on the ground that they are not full enough to cover the issues in the case, and where a party expects to argue that the trial court erred in not giving requested instructions, he must bring up all instructions given by the trial court. Otherwise, there is no way for this court, on review, to determine what may or may not have been included in those instructions not brought here. It devolves upon the party appealing to bring up a complete record of matters on which review is sought, and it is not incumbent upon the defensive party to supplement the necessary record to sustain appellant's contentions of...