Billings v. Aldridge

• Decision Date: 10 October 1931
• Docket Number: 30078
• Parties: BILLINGS v. ALDRIDGE et al. [*]
• Court: Kansas Supreme Court

3 P.2d 639

133 Kan. 769

BILLINGS v. ALDRIDGE et al. ^[*]

No. 30078,

Supreme Court of Kansas

October 10, 1931

Syllabus by the Court.

Contributory negligence of guest in automobile which went into ditch excavated for culvert held question for jury; evidence held to support finding of contractor's negligence in placing warning signs near ditch into which automobile went at night in action for personal injuries resulting when automobile plunged into ditch excavated for road culvert, statements of jurors regarding custom of contractors and position of plaintiff held not prejudicial misconduct; in action for personal injuries sustained in automobile accident, questions by plaintiff's counsel, answers to which disclosed insurance company was interested, held not prejudicial misconduct (Rev. St. 1923, 68--121).

In an action for personal injuries sustained in an automobile casualty, the record is examined, and it is held: (1) That the question of plaintiff's contributory negligence was for the jury; (2) that there was evidence to sustain the finding of the jury of negligence of defendants which caused the accident; (3) that there was no such misconduct of the jury or of counsel for plaintiff as to require the granting of a new trial.

In personal injury action, setting aside jury's answers to certain special questions held not to warrant new trial.

In an action for personal injuries in an automobile casualty, the jury answered special questions and returned a verdict for plaintiff. On defendants' motion, the court set aside the answers to three of the special questions as not being supported by the evidence. These questions are examined together with the record, and it is held, that they are not so material that the setting of them aside required the granting of a new trial.

Appeal from District Court, Butler County; George J. Benson, Judge.

Action by A. L. Billings against R. G. Aldridge and others. Judgment for the plaintiff, and the defendants appeal.

W. A Ayres, Austin M. Cowan, C. A. McCorkle, J. D. Fair, and W. A Kahrs, all of Wichita, and W. N. Calkins, of Eldorado, for appellants.

Harold H. Malone, Joseph Taggart, both of Wichita, and R. T. McCluggage, of Eldorado, for appellee.

HARVEY J.

This is an action for damages for personal injuries sustained in an automobile casualty. The jury answered special questions and returned a general verdict for plaintiff, and defendants have appealed.

The case was here before (Billings v. Aldridge, 129 Kan. 772, 284 P. 404), at which time a judgment for defendants was reversed, with directions to grant a new trial, for reasons stated in the opinion. The main facts disclosed by the record before us may be briefly stated as follows: The defendant Aldridge obtained a contract from Butler county for construction work on a part of United States highway No. 54 east of Rosalia. The work was under charge of his foreman, the defendant Nelson. On September 14, 1928, at a point a little more than a mile east of Rosalia, they made an excavation for a culvert by digging a ditch entirely across the traveled portion of the highway about two feet deep, five feet wide, with perpendicular sides. The dirt from the excavation, or most of it, was piled on the east side of the ditch, perhaps some of it on the west side. No notices, warning signs, or detour route markings were erected, either by the defendants or by the county, as required by Rev. St. 68--121. At the place where the excavation had been made, United States highway No. 54 is an east and west road, a part of the state highway system, was graveled a width of thirty feet, and was much traveled. On the evening of September 14th defendant Nelson had the workmen place a pile of brush on the highway about 24 feet west of the excavation. The brush consisted of limbs of trees, laid so the tops would lap and the butts extend toward the sides of the road. There is much difference in the testimony as to the size of this pile of brush, which appears not to have been measured by any one. Plaintiff's witnesses estimated that it was six or seven feet long north and south, and they estimated it variously as from two to four feet high, and as being about two feet thick. Defendants' witnesses thought it was larger, especially as to its length north and south. The limbs had been taken from green trees, perhaps cottonwood, and the foliage was on them. About halfway between the excavation and this brush a few shovelfuls of dirt had been piled on the ground near the center of the road, and an ordinary farm lantern, which gave a white or yellowish light, set on the pile of dirt. A passageway had been cleared around the north end of the pile of brush and excavation, but that had not been marked in any way.

Plaintiff resided in Wichita. He was about fifty years of age, a dentist, and had been engaged in that profession about twenty-five years. On the morning of September 15th he was going by automobile with J. A. Elliott, as his guest, from Elliott's home near Kechi, Kan., to Butler, Mo. It was an almost new Graham-Paige sedan, belonging to and driven by J. A. Elliott, who had driven automobiles for about fifteen years. Other persons in the car were three of Elliott's brothers and a brother-in-law. Plaintiff occupied the back seat, directly behind the driver. They started about 3:30 o'clock in the morning, and reached the place where this excavation had been made in the road about 5 o'clock. It was still dark. The distance they had driven was about 38 miles. The driving had been done at a speed of from 35 to 40 miles per hour, except when they slowed up while passing through towns, turning corners, or for other purposes. The driver had been over the road but once, and that was several years before. Over a part of this way there had been a rainstorm, with some wind, the night before, and at two places in the highway before reaching this excavation there was brush, or a limb of a tree, in the road. The driver says that on both occasions he slowed up as he approached them and drove around them. The plaintiff saw those in each instance and observed the conduct of the driver with respect to them. As they approached from the west the excavation made by defendants for the culvert, the driver testified that he saw the brush in the road; that he slowed up a little and pulled to the right to drive around it; that about the time he got even with the brush, or shortly before, he saw the lantern, also the pile of dirt which had been thrown out by the excavating of the ditch; that he applied his brokes; and that the car went forward into the ditch. Plaintiff's testimony was that as they approached this brush he was changing his position in his seat, and had taken hold of the coat rail on the back of the front seat with both hands to assist himself in doing so; that he noticed the car slow up and saw the brush just about the time they got even with it, and the lantern and ditch directly thereafter; that in perhaps a second after seeing the brush the car was in the ditch. The plaintiff was thrown forward in such a way that his wrists on both hands were broken and he sustained other injuries. The amount of the verdict, $6,000, is not specifically complained of, if plaintiff is entitled to recover. Perhaps this is because of the severity of plaintiff's injuries; at any rate, we need give the amount of the verdict no special attention. The jury answered special questions as follows:

"Q. 1. If your verdict is in favor of the plaintiff, then state what act or acts of negligence you find the defendants guilty of which caused the accident. A. Failed to put up proper closed road signs.

"Q. 3. At what rate of speed was the automobile moving as it approached the ditch in question and before the brakes were applied? A. From 30 to 35 miles per hour.

"Q. 4. Was the plaintiff watching the road ahead of the automobile as it approached the ditch? A. No.

"Q. 5. If the plaintiff sitting in the rear left seat of the automobile had been watching the road ahead of the automobile, at what distance west of the ditch in question could the tree limbs or brush in the road have been seen by him? A. Fifteen feet.

"Q. 6. Could the car which the plaintiff was riding have been stopped as it approached the ditch without going into the ditch after the brush of tree limbs came into the range of vision of the headlights of the car? A. Yes, if it was recognized as a warning of danger.

"Q. 7. Do you find that the plaintiff was guilty of contributory negligence? A. No.

"Q. 9. Could the automobile in which plaintiff was riding have been stopped as it approached the ditch in question without going into the ditch after the light of the lantern came into view of those riding in the automobile? A. No.

"Q. 10. If you find for the plaintiff, then state what precaution, if any, plaintiff took for his own safety as he approached the ditch? A. Not any.

"Q. 11. If the plaintiff sitting in the rear left seat of the automobile had been watching ahead of the automobile, at what distance west of the ditch in question could he have seen the light of the lantern? A. Twenty-five feet.

"Q. 12. Was there anything plaintiff could have done to have avoided the accident after the trees or brush came into the range of vision of a person in the position of the plaintiff on the highway at the time of this accident? If so, what? A. No.

"Q. 13. Was there anything the plaintiff could have done to have avoided the accident after the light of the lantern came into the range of vision of a person in the position of the plaintiff on the highway at the time of the accident? If so, what? A. No."

Defendants' motion to set aside the answers to special questions numbers 5, 9, and 11 as not being supported by...