Cain v. Steely
| Decision Date | 24 January 1953 |
| Docket Number | No. 38816,38816 |
| Citation | 173 Kan. 866,252 P.2d 909 |
| Parties | CAIN v. STEELY. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. In an action for damages for personal injuries, the record is examined and it is held, that the testimony of a physician witness as to plaintiff's injuries was not based upon the history of the case to an extent seriously objectionable.
2. Under G.S.1949, 8-550, the driver of a vehicle, approaching an intersection of a public street or highway, shall yield the right of way to a vehicle which has entered the intersection from a different street or highway.
3. In testing the sufficiency of evidence as against a demurrer, the court shall consider all of plaintiff's evidence as true, shall consider that favorable to plaintiff, together with all reasonable inferences to be drawn therefrom, and disregard that unfavorable to plaintiff, and shall not weigh any part that is contradictory, nor weigh any differences between her direct and cross examination, and if, so considered, there is any evidence which sustains plaintiff's case, the demurrer should be overruled.
4. The question whether a plaintiff is guilty of contributory negligence must be submitted to a jury, if the facts of record are such that reasonable minds, in the exercise of fair and impartial judgment, might reach different conclusions thereon.
5. For the purpose of obtaining a ruling on a motion non obstante veredicto, the special findings are admitted to be supported by the evidence.
6. A general verdict imports a finding in favor of the prevailing party upon all the issues in the case not inconsistent with the special findings, which are to be given such a construction, if possible, as will bring them into harmony with the general verdict.
7. In considering answers of the jury to special questions, the court is not permitted to isolate one answer and ignore others; all are to be considered together, and if one interpretation leads to inconsistency and another to harmony with the general verdict, the latter is to be adopted.
8. It is not sufficient that there be some inconsistencies between the special findings, but they must be so contrary to the general verdict as to compel a contrary judgment as a matter of law.
9. The record examined in an action to recover damages for personal injuries sustained in an automobile collision, and held, the trial court did not err: (1) In denying defendant's motion to strike certain medical testimony; (2) in overruling defendant's demurrer to plaintiff's evidence; and (3) overruling defendant's motion for judgment non obstante veredicto.
Vincent F. Hiebsch, of Wichita, argued the cause, and Milton Zacharias, Kenneth H. Hiebsch, J. R. Sheedy, Yale W. Gifford and Richard A. Render, all of Wichita, were with him on the briefs, for the appellant.
Clyde M. Simon, of Wichita, argued the cause, and P. J. Warnick, Henry E. Martz, Alan B. Phares, all of Wichita, were with him on the briefs, for the appellee.
This was an action to recover for personal injuries sustained when two automobiles collided at the intersection of two city streets. The plaintiff recovered and defendant appeals.
Except as they define the issues, the pleadings are unimportant and require little attention. All that need by said respecting them is that the petition alleged plaintiff was driving her automobile in a careful, prudent manner in a northerly direction on Sherman avenue, and had entered the intersection of Sherman avenue and Third street in Wichita, when defendant, traveling in an easterly direction on Third street at a reckless and negligent rate of speed, collided with plaintiff's automobile, resulting in her injury; that the collision was due to the negligent acts of the defendant in exceeding the speed limit; failing to keep a lookout; failing to exercise ordinary care in order to avoid the accident, and failing to yield the right of way after she had entered the intersection first.
Defendant answered by way of general denial and alleged contributory negligence on the part of the plaintiff in failing to observe defendant's vehicle which was first to enter the intersection, and in her driving at an excessive rate of speed, and failing to yield the right of way, or to slow, swerve, or stop her automobile prior to striking defendant. The reply was a general denial.
Plaintiff's evidence in support of allegations contained in her petition may be summarized as follows:
The collision occurred on October 12, 1949, at the intersection of Sherman avenue and Third street in the city of Wichita. Sherman avenue runs north and south and is thirty feet wide at the intersection, while Third street runs east and west and is thirty-six feet wide at the intersection. The two streets cross each other at right angles. Plaintiff was driving in a northerly direction on Sherman avenue, and defendant in an easterly direction on Third street. The intersection of the two streets is a so-called 'open' intersection, having no stop signs or traffic controls of any type. Plaintiff testified that she observed defendant approaching from the west, glanced around to check traffic in other directions, and then returned her attention to defendant's car and continued watching it approach the intersection. She estimated her speed at 15 to 20 miles per hour, and defendant's speed at 20 to 25 miles per hour. She stated she had the impression that defendant slowed down. When she got to the south curb line of Third street, defendant was the width of the sidewalk west of the intersection. She further stated she slowed down as she entered the intersection and as she was through the south side, and had entered the north portion of the intersection, defendant's car struck her on the left side near the rear panel, and that when she was three car lengths back from the intersection, defendant's car, approaching her from the left, was five car lengths back from the intersection; that the impact of the cars took place in the northeast quadrant of the intersection, and that her rear wheels were directly over the center line of Third street.
One Charles Younkin testified the plaintiff's front wheels entered the intersection of the streets before defendant's car, and that plaintiff was traveling 15 to 20 miles per hour, and defendant 25 miles per hour, that defendant's front bumper and grill collided with plaintiff's automobile at the left rear section of the car just at the door post; that he overheard defendant say he had not seen plaintiff.
This narrates the evidence on the part of the plaintiff with the exception of the medical testimony, which is hereinafter referred to. At the close of the plaintiff's evidence, defendant interposed a demurrer to the evidence on the ground that plaintiff's own testimony showed that she was guilty of contributory negligence as a matter of law. This demurrer was overruled and is assigned by defendant as error.
The defendant testified, in substance, that he was driving east on Third street and as he approached the intersection of Third and Sherman, he looked south and north and saw no vehicle approaching; he estimated his speed at 10 or 15 miles per hour as he entered the intersection; that his right front fender struck plaintiff's automobile; he observed plaintiff's car just as the automobiles collided; his automobile struck the plaintiff's car on the hinges of the front door about the center of the car; that on the southwest corner of Sherman and Third street is an open lot, but his view was obstructed by a big truck parked on the west side of the street not far from the corner.
The case was submitted to the jury which, after deliberating, returned its general verdict in favor of the plaintiff, and against the defendant. At the same time the jury returned into court its answers to special interrogatories submitted by the court as follows:
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East of West line of Sherman Avenue.
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Defendant's motion for judgment on the answers of the jury to the special interrogatories notwithstanding the general verdict of the jury was overruled. To this ruling, defendant assigns error. The foregoing completes the evidence and pleadings necessary to determine the three issues raised on appeal.
Defendant first contends that the trial court erred in failing to sustain his motion to strike from the record the testimony of plaintiff's witness, Dr. Padfield, as being...
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