Borggren v. Liebling

• Decision Date: 21 January 1967
• Docket Number: No. 44621,44621
• Citation: 198 Kan. 161,422 P.2d 884
• Parties: Charles W. BORGGREN, Appellee, v. Isidor LIEBLING, Appellant.
• Court: Kansas Supreme Court

Page 884

422 P.2d 884

198 Kan. 161

Charles W. BORGGREN, Appellee, v.Isidor LIEBLING, Appellant.

No. 44621.

Supreme Court of Kansas.

Jan. 21, 1967.

Syllabus by the Court

In an action to recover damages for personal injuries sustained as a result of the defendant's automobile colliding with the plaintiff's pickup truck on icy, slick streets in a residential area in the city of Pittsburg, the record is examined, and it is held to disclose no error warranting a reversal of the judgment.

R. L. White, Pittsburg, argued the cause, and J. B. Towner, R. L. Letton, and J. Curtis Nettels, Pittsburg, were with him on the briefs for appellant.

J. John Marshall, Pittsburg, argued the cause, and Douglas G. Hudson, Fort Scott, was with him on the briefs for appellee.

FATZER, Justice.

The defendant, Isidor Liebling, appeals from a verdict in favor of the plaintiff, Charles W. Borggren, in an action for damages arising out of a collision of the defendant's automobile with the plaintiff's one-half ton pickup truck, at an 'open intersection' in the city of Pittsburg, Kansas.

For brevity and clarity, the parties will be referred to by their identity in the district court.

The defendant makes two contentions: First, that the district court erred in overruling his motion for summary judgment made at the close of all the evidence, upon the ground of plaintiff's contributory negligence as a matter of law, which motion was renewed following entry of judgment upon the jury's verdict, and second, in overruling his motion for a new trial based upon alleged misconduct of one of plaintiff's counsel during the trial.

The pleadings are not in issue.All that need be said is the petition was sufficient in form and stated a cause of action charging the defendant with the negligent and careless operation of his automobile which proximately caused the plaintiff painful and disabling permanent injuries, and the defendant's answer contained a general denial and pleaded contributory negligence on the part of the plaintiff.The defendant's cross petition charged the plaintiff with five grounds of negligence and sought damages for his personal injuries, and to his automobile.

Highly summarized, the essential facts follow: On December 18, 1963, at about 5:50 p. m. the plaintiff was driving his pickup on Euclid Street in Pittsburg, proceeding in a westerly direction.At the same time, the defendant was proceeding south on Locust Street.Both streets traverse a residential section of the city; they are about 30 feet wide; their brick surface was very icy, and it was dark.There were no traffic control lights or stop signs at the intersection of those two streets, and the defendant's automobile struck the right side of plaintiff's pickup truck causing it to careen sidewise and hit a tree near the southwest corner of the intersection.The city had applied some solution to the intersection, but at the time of the accident it was frozen.There were no skid marks made before the collision.

The plaintiff was familiar with the intersection, having passed it several times a day.At the time in question, he approached the intersection, driving about fifteen to twenty miles per hour.When he was approximately 45 to 50 feet east, he looked to the south and north for traffic.He could see up Locust Street to the north about three-fourths of a block and he saw the headlights of a car about a half block away, heading south.A city block in Pittsburg is approximately 300 feet.He proceeded into the intersection at a speed of fifteen miles per hour, and took his foot off the gas.He looked again to the north and saw the headlights of the defendant's car about ten feet from him and he swerved to the left to avoid the collision.At that time the plaintiff was in the middle of the intersection.When the collision occurred, the front of the pickup truck had almost cleared the intersection.There was evidence the defendant was driving his car 45 miles per hour at the time of the collision.The plaintiff's truck was practically demolished, and he sustained permanent and disabling injuries.

It is unnecessary to reiterate the rule with respect to determining whether the plaintiff was guilty of contributory negligence as a matter of law.The rule has been stated and restated in a plethora of cases-the books are full of them.A few of our recent cases in which the rule is stated are Casement v. Gearhart, 189 Kan. 442, 370 P.2d 95;Gard v. Sherwood Construction Co., 194 Kan. 541, 400 P.2d 995;Pennsylvania National Mutual Cas. Co. v. Dennis, 195 Kan. 594, 408 P.2d 575;Deemer v. Reichart, 195 Kan. 232, 240, 404 P.2d 174;Canfield v. Oberzan, 196 Kan. 107, 113, 114, 410 P.2d 339, and Johnston, Administratrix v. Ecord, 196 Kan. 521, 527, 528, 412 P.2d 990.

Whether the plaintiff is guilty of contributory negligence is ordinarily a question of fact for the jury, it being left to it under proper instructions whether the plaintiff acted with reasonable care under the particular circumstances of the case.It is only when the evidence is so clear that the minds of reasonably prudent persons could arrive at only one conclusion that a district court is permitted to declare whether the plaintiff was guilty of contributory negligence.Sincere and impartial persons of equal intelligence frequently draw different conclusions as to negligence from the same identical facts.Where it is possible such persons may so differ, the law commits the decision to the jury on the theory it may resolve the differences and reach a unanimous decision.(Weber v. Wilson, 187 Kan. 214, 219, 356 P.2d 659.)Moreover, contributory negligence is never presumed; it must be established by proof, and when the plaintiff's evidence does not disclose his contributory negligence as a matter of law, the jury has an absolute right to disbelieve and disregard all evidence tending to establish its existence.(Canfield v. Oberzan, supra.)

Considering the evidence under applicable rules, we are of the opinion the facts urged to convict the plaintiff of contributory negligence were not established by proof beyond the point where reasonable minds might differ.The plaintiff approached the intersection at a reduced speed because of adverse weather and icy conditions, and was struck by the defendant's car which was three times the distance he was from the intersection when he first observed it.The plaintiff had the right to assume the defendant would obey the speed laws.(K.S.A. 8-532.)In view of the condition of the streets and the distances involved, the plaintiff's conduct in proceeding into the intersection cannot be said to be negligence to the degree that reasonable minds might not differ, and we conclude the district court did not err in overruling the defendant's motions for summary judgment.The case of Gard v. Sherwood Construction Co., supra, is apropos.That was a negligence case and the district court sustained the defendant's demurrer to plaintiff's evidence.In reversing, this court said:

'The legal questions here involved are so well settled in our law that they need not be labored.This was an action at common law in which the plaintiff sought damages alleged to have resulted from defendant's negligence.This is the kind of an action in which each party is entitled to a trial by jury as a...