Blankenship v. Fraker

• Decision Date: 08 November 1952
• Docket Number: No. 38562,38562
• Citation: 249 P.2d 683,173 Kan. 438
• Parties: BLANKENSHIP v. FRAKER.
• Court: Kansas Supreme Court

Page 683

249 P.2d 683

173 Kan. 438

BLANKENSHIP v. FRAKER.

No. 38562.

Supreme Court of Kansas.

Nov. 8, 1952.

Syllabus by the Court.

In an action to recover for personal injuries and property damage resulting from a collision of motor vehicles at the intersection of two city streets the record is examined, and it is held, the trial court did not err in overruling (1) a demurrer to plaintiff's evidence and (2) a motion for judgment on certain special findings of the jury notwithstanding its general verdict.

Harold E. Doherty, Topeka, argued the cause, and G. Clay Baker, Topeka, was with him on the briefs for appellant.

Edward Rooney, Topeka, argued the cause, and Jacob A. Dickinson, David Prager and Sam A. Crow, Topeka, were with him on the briefs for appellee.

PARKER, Justice.

This was an action to recover for personal injuries and property damage sustained when an automobile and a motor truck collided at the intersection of two city streets. The plaintiff recovered and the defendant has appealed on grounds that the trial court erred (1) in overruling his demurrer to plaintiff's evidence and (2) in overruling his motion for judgment on answers returned by the jury to special question notwithstanding its general verdict.

Except as they define the issues the pleadings are of no importance and require little attention. All that need be said respecting them is that each party charges that the other's negligence was responsible for the collision and that the cause was submitted to the jury on issues thus joined.

Although, as heretofore indicated, the scope of appellate review is limited the first claim of error relied on as a ground for reversal of the judgment requires a somewhat detailed review of the evidence. We therefore turn to the record, pointing out as we do so that it must be examined in the light of the well established rule. See Picou v. Kansas City Public Service Co., 156 Kan. 452, 134 P.2d 686; Roddy v. Hill Packing Co., 156 Kan. 706, 137 P.2d 212; Phillips v. Doyle, 167 Kan. 376, 378, 207 P.2d 465; Nigh v. Wondra, 167 Kan. 701, 208 P.2d 239; Schneider v. Stweart, 170 Kan. 158, 162, 223 P.2d 698; In re Estate of Modlin, 172 Kan. 428, 434, 241 P.2d 692, and other decisions to the same effect listed in West's Kansas Digest, Negligence, k136(9)(10), Appeal and Error, k927(5), and Trial, k156(2)(3) that in ruling on a demurrer to the evidence an appellate court does not weigh or compare contradictory testimony but must accept all evidence as true, give it the benefit of all inferences that may properly be drawn therefrom, and consider only such portions thereof as are favorable to the party adducing it.

While some of the undisputed fact disclosed by the record are not required to dispose of the issue raised by the demurrer, that appellee was guilty of contributory negligence precluding his recovery as a matter of law, they are nevertheless essential to a proper understanding of the factual picture existing just prior to the moment of the involved collision and should be related. They can be stated thus: Wayne Street running North and South and West Fifteenth Street running East and West in the City of Topeka intersect at a point in the Southwest portion of such City. At that point there were no stop signs and no obstructions or buildings which kept the drivers of motor vehicles from observing traffic approaching from any direction on the date in question. On the afternoon or early evening of March 10, 1948, the appellee, B. F. Blankenship, and 5 other residents of Topeka, left their place of employment in a 1937 Plymouth Sedan for their respective homes traveling North on Wayne Street. Appellee was the owner and driver of the automobile. At or about the same time the appellant, Harold F. Fraker, was driving a truck in an Easterly direction on West Fifteenth Street. It was still daylight and, while it had been storming, and the streets were covered with ice and snow, visibility was such 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 Wayne and West Fifteenth Streets where a collision occurred and appellee sustained injuries to his person and property.

The evidence as to what took place immediately prior to and how the collision occurred is contradictory and cannot be reconciled. Briefly, and keeping in mind that for immediate purposes we are not permitted to weigh the conflicting evidence, it can be stated the appellee's testimony, which was corroborated in many particulars by five other witnesses who were present in his automobile just prior to and at the moment of the collision, was to the effect that when he was 15 or 20 feet away from the intersection he slowed down to a speed of 5 miles per hour; that he approached the south curb line of Fifteenth Street at that speed and when he reached such point looked to the West and observed appellant's truck was then two blocks away and traveling in an Easterly direction toward the intersection; that at that moment he could not tell how fast such truck was traveling; that with the truck that far away he thought he had time to safely cross the intersection; that he then entered the intersection at a slow rate of speed; that it was not until he entered the intersection he realized appellant was approaching at too fast a rate of speed; that he had passed the center of the intersection when appellant's truck entered it and collided with his automobile; and that he would have been able to safely cross the intersection if appellant had not been coming so fast.

The records is replect with evidence showing that appellee entered the intersection first. Therefore, although it has not been cited or relied on specifically in appellee's brief or argument, we are bound to take judicial notice of the then existing provisions of our statute, now appearing in G.S.1949, 8-550, which we pause to point out have application under and by virtue of the provisions of what was then and is now G.S.1949, 8-507, expressly providing that the driver of a vehicle approaching an intersection shall yield the right-of-way to a vehicle which has entered the intersection from a different highway.

In view of what has been...