Briggs v. Burk, 38918

• Decision Date: 11 May 1953
• Docket Number: No. 38918,38918
• Citation: 257 P.2d 164,174 Kan. 440
• Parties: BRIGGS v. BURK et al.
• Court: Kansas Supreme Court

Page 164

257 P.2d 164

174 Kan. 440

BRIGGS v. BURK et al.

No. 38918.

Supreme Court of Kansas.

May 11, 1953.

Syllabus by the Court.

1. Following Sawhill v. Casualty Reciprocal Exchange, 152 Kan. 735, 107 P.2d 770, and other decisions cited in the opinion, it is held, the physical facts and circumstances of a motor vehicle collision may be sufficiently clear to enable the triers of fact to form a judgment of how the collision occurred and who was at fault, although there was no eyewitness to the collision.

2. The record in an action to recover damages for wrongful death, resulting from a motor vehicle collision in which there was no eyewitness to the collision, examined, and held, that under the facts, circumstances, and conditions disclosed by the evidence, as fully set forth in the opinion, the trial court erred in sustaining the demurrer to plaintiff's evidence and in rendering judgment against her for costs.

Ward D. Martin and Arthur L. Claussen, Topeka, argued the cause, and A. Harry Crane, Topeka, and Leonard W. McAnarney, Lyndon, were with them on the briefs, for appellant.

David H. Fisher, Topeka, argued the cause, and Irwin Snattinger, Topeka, was with him on the briefs, for appellees.

PARKER, Justice.

This was an action to recover damages for wrongful death. The plaintiff appeals from the trial court's action in sustaining a demurrer to her evidence, in rendering judgment against her for costs, and overruling her motion for a new trial.

No important issue is raised respecting the pleadings. Therefore all that need be said respecting them for the moment is that the second amended petition, hereinafter referred to as the petition, charges the proximate cause of the accident and the death of plaintiff's husband, Joseph Edward Briggs, were due to divers acts of negligence on the part of defendant, Clyde Burk, while driving his Ford truck, insured by the defendant the Hartford Accident and Indemnity Company as a private motor carrier of property under a permit issued by the state corporation commission, on the public highways; that the defendants' separate answers deny generally all acts of negligence charged against Burk and assert the accident and death of Briggs resulted from various acts of negligence on the part of one Burns, with whom such Briggs was riding in the other vehicle involved in the accident under conditions and circumstances making him liable for the acts of negligence of the operator of such vehicle; and that plaintiff's separate replies to the answers deny generally and specially all acts of negligence relied on as a defense to the petition, including the facts therein stated which, if established, would have made the said Briggs responsible for any acts of negligence charged against the driver of the automobile in which he was a passenger at the time of his death.

Upon issues joined, as above related, the cause came on for trial by a jury. Plaintiff adduced her evidence and rested. Defendants then demurred to the evidence on the ground it failed to prove a cause of action. Thereupon, after consideration of arguments on the issue thus raised, the trial court sustained the demurrer, discharged the jury, and rendered judgment in favor of defendants and against the plaintiff for costs. Thereafter, and following the overruling of her motion for new trial, plaintiff perfected the appeal to which we have heretofore referred.

Before giving consideration to the cause on its merits one question raised by appellees requires attention. They point out some of appellant's brief is taken up in describing Exhibits 1 to 10 incl., pictures taken at the scene of the accident on the day following its occurrence, and Exhibit 15, a large diagram of the scene of the accident; that these Exhibits were not included in the abstract furnished by the appellant; and that prior to filing their brief they filed a motion to have them stricken from consideration on appeal, which motion was overruled with leave to renew at the hearing on the merits. Appellees have renewed their motion to insist that it be sustained. In addition they argue such Exhibits are entitled to no consideration in disposing of the cause. It should be stated failure to include these Exhibits, and reference thereto in appellant's brief without their inclusion, in the abstract has made the work of this court difficult and burdensome. However, the fact remains that all such Exhibits, which we pause to note are of such size that to include them in the abstract would have made that document bulky and unwieldly, were introduced in the court below and it must be conceded they were available to the parties in the office of the clerk of the district court of Shawnee county, the very county in which the case was tried; and heard on appellate review. It should also be added that appellees were able to file a brief answering the contentions advanced by appellant with respect to such Exhibits and that on the day prior to the hearing of the cause in this court appellant procured and filed them with the clerk of this court for our consideration. Under the foregoing circumstances, although it should be said the practice followed by appellant is not to be encouraged or unreservedly approved, we fail to see where appellees have sustained any prejudice to their substantial rights as a result thereof. Therefore the motion and appellees' contentions with respect thereto are overruled. It should perhaps be added the two decisions on which they rely are clearly distinguishable and hence do not sustain their position on this point. In Phillippi v. Speer, 152 Kan. 325, 103 P.2d 777, there was no abstract of the evidence, and neither the abstract nor the brief of appellant contained any assignment of error. In State v. Graham, 172 Kan. 627, 242 P.2d 1067, the record failed to set forth the motion for a new trial or the grounds on which it was based and in no way disclosed what alleged trial errors were brought to the attention of the trial court when it was heard. We held that in that situation rulings of the trial court on the motion for new trial were not subject to appellate review.

The first and most important of the questions raised by appellant in somewhat numerous specifications of error is that the trial court erred in sustaining the appellees' demurrer to her evidence. It goes without saying, this claim requires a detailed review of the evidence. We therefore turn to the record which, it should be kept in mind, must be analyzed in the light of the well established rule (See Blankenship v. Fraker, 173 Kan. 438, 249 P.2d 683, recently followed in Messinger v. Fulton, 173 Kan. 851, 252 P.2d 904; Cain v. Steely, 173 Kan. 866, 252 P.2d 909, and Tuggle v. Cathers, 174 Kan. 122, 127, 254 P.2d 807, citing numerous decisions and referring to sections of a well known Kansas Digest where other cases of like import may be found) that in ruling on a demurrer to evidence courts do not weigh nor compare contradictory testimony but must accept all evidence as true, give it the benefit of all inferences that may be drawn therefrom, and consider only such portions thereof as are favorable to the party adducing it.

Applying the rule and without reference to evidence touching questions of negligence or conditions existing at the moment of the collision of the vehicles in question we shall first give our attention to the facts of record essential to a proper understanding of the over-all factual picture.

On the morning of February 9, 1950, Clyde Burk, who was engaged in the nursery business at that point, left Dodge City driving a 1949 Ford half ton pickup truck, bound for Topeka, heavily loaded with 2,500 to 3,000 elm seedlings. Late in the afternoon of that day he had reached a point several miles south of Carbondale and was traveling north toward Topeka on U. S. Highway 75. On the afternoon of the same day four men, Robert Burns, Max Wade, Lewis Perry, and Joe Briggs, who had been riding to and from work in a 1940 Buick Sedan, owned and driven by Burns, left Topeka in that vehicle, traveling south on the same highway in the direction of Carbondale. Burns lived two miles north of Lyndon, Wade lived south of Lyndon, Perry lived in Carbondale, and Briggs lived about one and three-fourths miles south of Carbondale. Burns, who was a careful and prudent driver, was driving and the automobile was in good mechanical condition. No stops were made along the road until they reached Carbondale where Perry got out and started to walk home. Perry, who was the last eye witness to see the Buick before the accident, stated that when he got out the car started off slowly; that at that time Wade was riding in the front seat beside Burns and Briggs in the back seat; and that after he had walked about two hundred and seventy feet toward his home he heard a crash which subsequent investigation disclosed was due to the accident in question.

After leaving Carbondale the Buick proceeded south on U. S. 75 approximately a quarter of a mile to a point on such highway where there was a collision between it and the Ford truck, coming from the opposite direction, which resulted in the death of all three occupants of the Buick and serious injuries to appellee Burk, who was driving the truck. There were no eye witnesses to the collision but it is clear from the testimony of the witnesses who heard the crash that it occurred at 5:45 p.m., in broad daylight, at a time when the road was dry and there was nothing, so far as weather conditions were concerned, to impair the visibility of the drivers of either vehicle.

Further examination of the record reveals, as appellants frankly concedes, that if her evidence is sufficient as against the demurrer it must be on the bases of facts existing prior to the collision and the physical facts and circumstances observed by witnesses after the crash occurred. For that reason, without comment on the weight of the force and effect to be given it, we...