Blosser v. Wagner

• Decision Date: 03 July 1936
• Docket Number: 32956.
• Citation: 144 Kan. 318,59 P.2d 37
• Parties: BLOSSER v. WAGNER.
• Court: Kansas Supreme Court

59 P.2d 37

144 Kan. 318

BLOSSER v. WAGNER.

No. 32956.

Supreme Court of Kansas

July 3, 1936

Syllabus by the Court.

In action against motorist colliding with girl on bicycle petition alleging that motorist failed to turn to avoid striking girl and to apply brakes after he had discovered, or should have discovered, girl's danger, while not admitting contributory negligence, held to justify instruction on last clear chance doctrine.

Petition against motorist colliding with girl on bicycle, which alleged negligence to have been reckless and willful and stated facts tending to show such negligence, justified introduction of evidence to establish wantonness.

Evidence held insufficient to show wantonness of motorist, who collided with girl on bicycle, which would render motorist liable for injuries to girl notwithstanding her contributory negligence.

Where jury found specially that motorist colliding with girl on bicycle was negligent in not stopping sooner after collision and that girl was contributorily negligent in turning in front of automobile, motorist held entitled to judgment on special findings notwithstanding general verdict for girl, as against contention that injuries suffered after collision were chargeable to motorist because of failure to stop promptly (Rev.St. 1923, 60--2918).

The proceedings considered in an action for damages for injuries received by the negligence of the defendant commencing after a collision, where the collision was found to be occasioned by the contributory negligence of the plaintiff, it is held (1) that the doctrine of last clear chance was sufficiently set out in the petition to inform the defendant of the intention of the plaintiff to claim thereunder; (2) that wantonness was also sufficiently pleaded by plaintiff by alleging the negligence to have been reckless and willful and stating facts tending to show the same, but wantonness was not shown to have been found or proved; and (3) that the answers of the jury to the special questions are clearly inconsistent with the general verdict, and the answers should control.

Appeal from District Court, Seward County; Frank O. Rindom, Judge.

Action by Doris Blosser, a minor, by L. D. Blosser, her father and next friend, against L. F. Wagner. Verdict and judgment for plaintiff, and defendant appeals.

Reversed and remanded, with directions.

G. L Light and Auburn G. Light, both of Liberal, for appellant.

Chas M. Tucker and Chas. Vance, both of Liberal, for appellee.

HUTCHISON Justice.

In this case the defendant appeals from a judgment rendered against him in an action for damages caused by the collision of his automobile with the plaintiff, a twelve year old girl, on her bicycle, and it involves the questions of the last clear chance and wantonness, also the question of negligence and liability for additional injuries occurring after the first impact or collision.

The petition alleged negligence in many different particulars, also wantonness, and asked for damages in the sum of $12,300. The answer was a general denial and it alleged contributory negligence on the part of the plaintiff. The reply was a general denial. The jury returned a general verdict for plaintiff for $900 and answered five special questions. The defendant moved the court to render judgment for defendant on the answers to the special questions notwithstanding the general verdict. This motion of the defendant and his motion for a new trial were both overruled, and defendant appeals, assigning as errors these rulings and the giving and refusing to give certain instructions.

The appellant does not include in his abstract any of the evidence, thus admitting that the evidence sustained the findings of the jury. The appellee in her counter abstract sets out three sentences of the defendant's testimony in narrative form for the purpose of showing wantonness and the speed at which he was traveling at the time of the collision and the testimony of another witness giving the result from his experiments with defendant's car in stopping it within a certain distance when traveling at the speed named by defendant. The appellant in his reply brief supplements the evidence of defendant quoted in the counter abstract with further statements of defendant intended to modify or qualify that quoted in the counter abstract as evidence of wantonness.

This accident is alleged to have occurred about 6:30 p. m. on Second street in the city of Liberal, on March 8, 1934. Among the allegations of negligence contained in the petition are the following: "*** in failing after he had discovered or should have discovered by exercise of reasonable care plaintiff's danger to turn said automobile slightly to the south, which turning would have caused said automobile to avoid striking this plaintiff and the bicycle upon which she was riding; in failing to apply brakes after he discovered or should have discovered by exercise of reasonable care that plaintiff was endangered by his vehicle; in operating said automobile with faulty and defective brakes; *** in willfully and wantonly driving said automobile against this plaintiff and the bicycle upon which she was riding."

Appellant first urges that instruction No. 8 was erroneous in outlining and defining to the jury the doctrine of the last clear chance because no such doctrine was pleaded in the petition. The portion of the petition above quoted, all except the last clause, certainly has direct reference to that doctrine where it speaks of the defendant "failing after he had discovered or should have discovered by exercise of reasonable care plaintiff's danger," and in the next clause "in failing to apply brakes after he discovered or should have discovered by exercise of reasonable care that plaintiff was endangered by his vehicle." Last clear chance is usually developed by the pleadings on both sides of the case because the doctrine is regarded as an exception to the rule forbidding recovery by a plaintiff guilty of contributory negligence. 22 R.C.L. 144. Strictly speaking the petition might not be considered complete without an admission of contributory negligence, but this is usually alleged by the defendant, and then in the proceedings the question of whether that contributory negligence is a remote or proximate cause of the injury is considered. The petition in this case contains as much or more than seems to have been pleaded in the following cases, where the petitions were held to be sufficient to present that issue:

"Where the plaintiff in his petition set forth the circumstances under which the collision occurred, and defendant alleged that plaintiff's injuries were the result of his contributory negligence, a charge which the plaintiff denied, and proof was offered tending to show that the train was backed upon plaintiff after those operating it saw his helpless plight on the crossing, the court was warranted in instructing the jury as to the doctrine of the last clear chance, although the plaintiff had not stated in words in his petition that he was invoking that doctrine, and although he had not admitted that he was negligent, in driving upon the crossing." Juznik v. Kansas City Southern Railway Co., 109 Kan. 359, 199 P. 90, Syl. 2.

"It is held that the giving of an instruction on the doctrine of the 'last clear chance' was not erroneous, although the facts to which it was applicable had not been fully pleaded." Whatley v. Chicago G. W. R. Co., 123 Kan. 187, 253 P. 1096, Syl. 4.

"In an action for damages for injuries received at a railroad crossing on account of the negligence of the defendant railway company, where it is stated in the petition that the plaintiff's automobile became stalled upon the crossing, and before the plaintiff could get out of the automobile or away from the crossing the collision occurred, it is held that it was sufficient to inform the defendant of the intention of the plaintiff to make a claim under the last clear chance doctrine, although the pleadings along that line were incomplete. Juznik v. Railway Co., 109 Kan. 359, 199 P. 90." Bass v. St. Louis-S. F. R. Co., 143 Kan. 740, 57 P.2d 467, Syl. 1.

It is earnestly argued by the appellee in support of the conclusion reached by the court and jury that the element of wantonness, pleaded by the plaintiff, may properly eliminate the feature of contributory negligence as it has frequently been held, and in addition to several citations to that effect reference is made to the testimony of the defendant quoted in the counter abstract to establish such. We have no difficulty in concluding that there is enough in the petition to justify the introduction of evidence to establish wantonness, but we may have difficulty in treating it as having been established in this case.

In the case of Atchison, T. & S. F. Railway Co. v. Baker, 79 Kan. 183, 98 P. 804, 21 L.R.A. (N.S.) 427, cited by appellee in this connection, the jury found that the accident was due to the reckless and wanton...