Brittain v. Wichita Forwarding Co.

• Decision Date: 12 November 1949
• Docket Number: No. 37685,37685
• Citation: Brittain v. Wichita Forwarding Co., 211 P.2d 77, 168 Kan. 145 (Kan. 1949)
• Parties: BRITTAIN v. WICHITA FORWARDING CO. et al.
• Court: Kansas Supreme Court

Page 77

211 P.2d 77

168 Kan. 145

BRITTAIN v.WICHITA FORWARDING CO. et al.

No. 37685.

Supreme Court of Kansas.

Nov. 12, 1949.

Rehearing Denied Dec. 16, 1949.

Syllabus by the Court.

1.An answer to a special question when uncertain must be construed against the party on whom the burden rests to establish the fact in issue.

2.An expression of doubt is not tantamount to a finding of fact.Doubt indicates an uncertainty, a lack of sufficient information upon which to reach a conclusion.

3.Where a special question seeking to ascertain whether a defendant's truck was lighted while parked on a highway at the time a collision occurred is answered 'Doubtful' the answer must be construed as being 'Yes'.

4.A general finding of negligence must yield to a detailed contrary finding on the specific act of negligence charged.

I. H. Stearns, of Wichita, argued the cause, and E. P. Villepigue, of Wichita, was with him on the briefs for appellants.

Myron S. Steere, of Ottawa, argued the cause, and Eugene G. Coombs, Paul V. Smith, and Douglas E. Shay, all of Wichita, were with him on the briefs for appellee.

WEDELL, Justice.

This was an action by Ruth Brittain, a widow, to recover damages for herself and minor children resulting from the alleged wrongful death of her husband in a collision of motor vehicles.The plaintiff prevailed and defendants have appealed.

The defendants were Earl Williams, owner of the semi-trailer truck involved; Wichita Forwarding Company, a corporation, the lessee and operator of the truck, which was engaged as a common motor carrier under a Kansas motor permit; Ed Moran, driver of the truck; and The National Mutual Casualty Company, the insurance carrier.

The death occurred as the result of a collision when H. E. Brittain drove his 1941 Chevrolet coach into the rear end of the truck which was alleged to have been unlawfully parked facing south on the west side of highways U. S. 59andU. S. 50 south, at a point approximately five miles north of the city of Ottawa, without lights thereon or flares and other warning signals required by law.

The deceased was approximately fifty-five years of age and in good health.His average earnings were approximately $300.00 per month.The jury returned a general verdict for plaintiff and against the defendants in the sum of $3,500 and answered special questions.Appellants assert the trial court erred in overruling (1) their demurrer to appellee's evidence; (2) their motion for a directed verdict; (3) their motion to set aside certain findings of the jury on the ground the general verdict and such findings of negligence were based purely on inference and conjecture; (4) their motion for judgment on the ground the evidence showed deceased was guilty of negligence which caused the accident; and (5) in overruling their motion not obstante veredicto.

Although there was one disinterested eyewitness to the accident within seventy-five feet appellee did not subpoena him.He testified on behalf of appellants.The deceased and the driver of the truck were alone in their respective vehicles.The accident occurred between 9:30 and 9:45 at night.The night was clear.Appellee does not contend there was evidence of any vehicle approaching from the opposite direction.Appellants' evidence was no such vehicle was approaching.

In the view we take of this appeal we find it necessary to treat only appellants' last contention.The specific allegations of the truck driver's negligence were:

'(a) In stopping or parking said truck upon the improved and main traveled part of said highway in the direct way of automobiles traveling in the direction of the automobile which the said H. E. Brittain was driving;

'(b) In stopping or parking said truck upon said highway in the night-time without lights burning, without flares, and without any other mode of warning being displayed;

'(c) In failing to display lighted lamps, flares or other illuminating devices required by law on said truck while it was being operated on said highway in the nighttime.'

In answer to special questions the jury found:

'1.Q.Do you find the defendant, Ed Moran and The Wichita Forwarding Company, guilty of negligence?A.Yes.

'2.Q.If you answered the foregoing question in the affirmative, then state in what such negligence consisted?A.Stopped on the highway without proper precautions.

'3.Q.Do you find the deceased H. E. Brittain guilty of negligence which contributed to his death?A.No.

'4.Q.If you answered the foregoing question in the affirmative, then state in what such negligence consisted.A. _____

'5.Q.Do you find that the Defendants' truck was standing still on the highway when the collision occurred?A.Yes.

'6.Q.Were the lights burning on the back of the truck at the time of the collision?A.Doubtful.

'7. Q. State whether or not there were any cars coming from the south whose lights blinded said deceased immediately prior to the collision.A.No.

'8. Q. State the rate of speed at which said deceased was traveling at the time of the collision.A. 55 M.P.H.'

The accident occurred March 28, 1947.The pertinent statute at that time, since amended in some particulars by chapter 106,Laws 1949, was G.S.1947 Supp. 8-5, 108.Insofar as material here it provided:

'No person shall operate any motor truck upon a highway outside of a business or residence district at any time from a half hour after sunset to a half hour before sunrise unless there shall be carried in such vehicle a sufficient number of flares, not less than three, or electric lanterns or other signals capable of continuously producing three warning lights each visible from a distance of at least 500 feet for a period of at least eight hours, except that a motor vehicle transporting flammables may carry red reflectors in place of the other signals above mentioned.Every such flare, lantern, signal, or reflector shall be of a type approved by the commissioner, and he shall publish lists of those devices which he has approved as adequate for the purposes of this section.(b) Whenever any motor truck and its lighting equipment are disabled during the period when lighted lamps must be displayed on vehicles and such motor truck cannot immediately be removed from the main...