Blakeman v. Lofland

• Decision Date: 24 January 1953
• Docket Number: No. 38659,38659
• Citation: 173 Kan. 725,252 P.2d 852
• Parties: BLAKEMAN v. LOFLAND et al.
• Court: Kansas Supreme Court

Page 852

252 P.2d 852

173 Kan. 725

BLAKEMAN v. LOFLAND et al.

No. 38659.

Supreme Court of Kansas.

Jan. 24, 1953.

Syllabus by the Court.

The record in an action to recover damages for personal injuries received when two automobiles collided at a street intersection in the city of Wichita is examined, and it is held, that under the facts, conditions, and circumstances set forth and described in the opinion, the trial court did not err in overruling plaintiff's motion for new trial.

Paul R. Kitch, of Wichita, argued the cause, and Howard T. Fleeson, Homer V. Gooing, Wayne Coulson, Dale M. Stucky and Donald R. Newkirk, all of Wichita, on briefs, for appellant.

John F. Eberhardt, of Wichita, argued the cause, and George Siefkin, George B. Powers, Samuel E. Bartlett, Carl T. Smith, Stuart R. Carter and Robert C. Foulston, Jr., all of Wichita, on the briefs, for appellee Siebert & Willis, Inc.

Lester Luther, of Topeka, argued the cause, and R. A. Hickey, Liberal, C. R. Harner, Dodge City and Rex A. Neubauer, Liberal, on the briefs, for appellee James E. Lofland.

PARKER, Justice.

This was an action to recover damages for personal injuries sustained when two automobiles collided at a street intersection in the city of Wichita, Kansas. There was a trial by jury which returned a general verdict in favor of defendants together with special interrogatories finding the negligence of both plaintiff and defendants contributed to the action. A motion for a new trial was overruled and judgment was entered upon the verdict. Plaintiff appeals from the judgment and the order of the district court overruling his motion for a new trial.

The pleadings are not in controversy, hence all that need be said respecting them is that the petition charges the proximate cause of the accident and the injuries sustained by the plaintiff were due to divers acts of negligence on the part of defendant, James E. Lofland, in driving his automobile into the intersection at a time when he was employed by defendant, Siebert & Willis, Inc., and acting within the course and scope of his employment, that the separate answers state any damages suffered by plaintiff resulted from his own acts of negligence (describing them) in driving his automobile into such intersection, and that the reply denies all allegations of the answers.

With issues joined as above stated the cause came on for trial. After all evidence had been adduced the jury was instructed as to the law, submitted special interrogatories, and directed to retire to the jury room and deliberate on its verdict. Subsequently the jury returned with a general verdict in favor of the defendants, together with the special interrogatories and its answers thereto, which read:

'1. What was the speed of the defendant's automobile when it was approximately 150 feet east of the intersection? Answer: Approximately 40 mi. per hr.

'2. What was the speed of the defendant's automobile when it was approximately 50 feet east of the intersection? Answer: Approximately 35 mi. per hr.

'3. Did the plaintiff stop at the stop sign as required by law? Answer: Don't know.

'4. When the plaintiff's car was at the stop sign south of the intersection, how far east on First Street could the driver have seen approaching traffic? Answer: At least 1 1/2 blocks.

'5. Immediately prior to the collision, was there anything to have prevented the plaintiff from seeing the defendant as he approached the intersection from the east? Answer: No.

'6. State the location of the defendant's automobile in regard to the east edge of the intersection at the time the plaintiff's car

'(a) Passed the stop sign. 40 feet--approximately.

'(b) Entered the intersection. Insufficient evidence.

'7. At the time the plaintiff's car passed the stop sign and entered the intersection, was the defendant's car close enough to the intersection to constitute an immediate hazard? Answer: Yes.

'8. At the time of the accident, did the defendant Siebert & Willis, Inc., have the right to control the physical conduct of the defendant Lofland? Answer: Yes.

'9. At the time of the collision, was the defendant Lofland acting in furtherance of the business of the defendant Siebert & Willis, Inc? Answer: Yes.

'10. Do you find that the proximate cause of the collision was the negligence of both the plaintiff and the defendant? Answer: Yes.

'11. What if any negligence do you find against the plaintiff which was a proximate and contributing cause of the collision? Answer: Failed to yield right of way.

'12. What if any negligence do you find against the defendant which was a proximate cause of the collision? Answer: Excessive speed--careless driving.'

Thereafter plaintiff filed a motion to set aside the answers to special questions Nos. 6(a), 7, 10 and 11, and a motion for a new trial. When these motions were overruled and judgment was rendered on the general verdict plaintiff perfected this appeal wherein, under proper specifications of error, he charged the trial court had erred in failing to sustain his motion to set aside the answers to special questions; in permitting the introduction of certain evidence, and in its instructions.

The only errors complained of in appellant's brief and on oral argument relate to the instructions. Therefore, since all other specifications of error must be regarded as abandoned, see Sams v. Commercial Standard Ins. Co., 157 Kan. 278, 139 P.2d 859; Henderson v. Deckert, 160 Kan. 386, 162 P.2d 88; Wing v. MidContinent Seeds, 170 Kan. 242, 244, 225 P.2d 78; State v. Anderson, 172 Kan. 402, 241 P.2d 742, the main portions of this opinion, so far as it relates to the legal questions involved, will be restricted to a discussion of alleged instructional errors.

A detailed review of the evidence is not absolutely essential to a disposition of the claims of error relied on. Nevertheless, a brief outline of the salient facts will be informative and insure a proper understanding of the issues. Therefore, we shall first depict the uncontroverted factual picture as it existed before the accident and then, in highly summarized form, without attempting to relate everything appearing of record, give our view of what the evidence disclosed respecting the existing situation just prior to and at the moment of the collision. This we may add, after stating there were only two eye witnesses to the accident besides appellee, Lofland, and the appellant, who was suffering from amnesia and testified he could not remember anything preceding its occurrence, will be done without identifying the witnesses or the parties offering their testimony.

First street, running east and west, is a through street and thirty-one feet wide. Grove street, running north and south, is thirty-four feet wide. The intersection where such streets cross is a stop intersection for Grove street traffic, with a stop sign positioned opposite such street at a point approximately sixteen to eighteen feet south of the south curb line of First street. At the point where the stop sign is located the driver of a motor vehicle approaching First street from the south can see approaching traffic on First street for a distance of at least one and one-half blocks.

On the morning of February 15, 1950, appellant, driving a 1948 Plymouth Coupe, was proceeding north on Grove street. At or about the same time appellee Lofland, who was then and there acting in furtherance of the business of the appellee corporation, was driving a 1949 Buick Convertible automobile, in a westerly direction on First street. At such time there was nothing to impair visibility and the driver of each vehicle could and should have seen traffic approaching for a considerable distance. Both motor vehicles approached and entered the intersection of First and Grove streets at about the same time where a collision occurred and appellant sustained personal injuries.

With respect to the conditions and circumstances causing the collision the record, reviewed as heretofore indicated, discloses evidence which warrants the following factual conclusions.

Some one hundred-fifty feet east of the east curb line of Grove street Lofland, in proceeding toward the intersection in question, came up behind a 1947 Ford Sedan which was being driven by Lillie E. Jones in the same direction at a speed of approximately twenty-eight miles per hour and passed it, turning as he did so into the south or wrong side of First street. At that time he was driving about forty miles per hour. Instead of turning back to the north or the right side of First street he continued to drive on the wrong side of such street. Upon reaching a point fifty feet east of the intersection he was traveling approximately thirty-five miles per hour. At that point he observed appellant's Plymouth automobile to the south on Grove street, just passing the stop sign, traveling at a speed of between twenty-five and thirty miles per hour. Thereafter both cars moved into the intersection without stopping and collided at a point approximately eleven feet and nine inches north of the south curb line of First street and twelve feet west of the east curb line of Grove street, the Buick striking the Plymouth squarely in the center of its right or east side. At the moment of the collision Lofland's car was still on the south half of First street and the Jones Ford, which was being driven on the north half of such street and was approximately a car's length behind the Lofland car, had either entered or was just entering the intersection.

At this point, even though for reasons to which we have heretofore alluded decision of the question is no longer imperative, we feel impelled to state the facts of record were ample to sustain the findings of the jury convicting the appellant of negligence which contributed to and was one of the proximate causes of the collision. Thus, since our decisions uniformly hold that contributory negligence of the character found by the jury...