Beye v. Andres, No. 39976

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

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.

Page 1050

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.

[179 Kan. 503] 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.

Page 1051

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...