Canfield v. Oberzan
| Decision Date | 22 January 1966 |
| Docket Number | No. 44258,44258 |
| Citation | 196 Kan. 107,410 P.2d 339 |
| Parties | Hazel CANFIELD, Appellee, v. James OBERZAN, Appellant. (E. R. McKinney, d/b/a the McKinney Motor Company, Appellee.) |
| Court | Kansas Supreme Court |
Syllabus by the Court
The record is examined in an action to recover damages sustained by plaintiff in a collision of motor vehicles at a rural intersection and it is held: The trial court did not err (1) in overruling defendant's motion for directed verdict; (2) in denying in part defendant's requested instructions and giving its instructions to the jury; (3) in not giving information to the jury after retiring, under the circumstances as set out in the opinion; (4) in the admission of certain evidence offered by plaintiff in rebuttal; (5) in overruling defendant's motion for judgment in accordance with defendant's motion for directed verdict, and (6) in overruling defendant's motion for new trial.
John B. Markham, Parsons, argued the cause and was on the brief, for appellant.
Charles F. Forsyth, Erie, argued the cause, and Ernest McRae, Wichita, and Clark M. Fleming, Erie, were with him on the brief, for appellee.
This is an action for damages by Hazel Canfield, plaintiff (appellee), against James Oberzan, defendant (appellant), and E. R. McKinney, d/b/a The McKinney Motor Co., codefendant, for damages received by appellee arising from a two automobile collision at a country road intersection on May 20, 1962, at about 7:30 P.M. The case was tried to a jury, commencing on June 1, 1964, and on June 4, 1964, the jury returned its verdict in the sum of $10,750.00 in favor of appellee Canfield against appellant Oberzan. Miss Canfield alleged in her petition that appellant Oberzan was the agent of defendant McKinney but the trial court held in favor of McKinney on a motion for summary judgment and McKinney was eliminated from the case as a codefendant. However, McKinney filed a cross-petition against both plaintiff Canfield and defendant Oberzan and recovered a judgment against Oberzan from which there was no appeal. The judgment of McKinney is not involved in appellant Oberzan's appeal from the Canfield judgment.
Immediately prior to the collision plaintiff Canfield, a teacher in the Oswego public schools, accompanied by her father and mother, was driving her 1959 Chevrolet in a southerly direction at a speed of about 40 miles per hour on a graveled country road about 8 miles north of Oswego in Labette county. At the same time Oberzan, accompanied by his wife and children, was driving as a prospective purchaser a 1959 Pontiac owned by McKinney toward the west on an east-west graveled country road. The automobiles collided at a wide open county intersection, resulting in injuries to Miss Canfield, her parents and the occupants of the Oberzan car, as well as to both vehicles.
Plaintiff Canfield's amended petition charged defendant Oberzan with various acts of negligence. Defendant Oberzan answered, denying negligence on his part and charging plaintiff Canfield with acts of contributory negligence. Canfield's reply was a general denial. In his cross-petition defendant McKinney charged both plaintiff Canfield and defendant Oberzan with negligence which caused the collision. At the trial the parties stipulated as to the damages to the Canfield and McKinney cars.
The Canfields were returning to their home located about two miles south of the intersection. The Oberzans were on their way home to Oswego. The Getman and Goedeke houses are located, one on each side of the north-south road traveled by Canfield at a high point on the road approximately 100 yards, more than a quarter of a mile (about 1900 feet) north of the intersection. The graveled north-south road slopes downhill from that point to the intersection. When Miss Canfield was at the elevated point she looked to the east and saw a car coming from the east, which she judged to be about a half mile east of the intersection. Miss Canfield testified she first saw the other car approaching when she was going down the incline and again saw it before entering the intersection at which time the Oberzan car was still twice as far from the corner as she was. She further testified that she looked in all directions before approaching the intersection.
Oberzan did not see the Canfield car until just shortly before the impact when he was about six car lengths east of the intersection. Witnesses for the plaintiff testified that there was no obstruction of view to a driver coming from the north approaching the intersection. Defendant Oberzan testified there were some weeds on the north side and east of the intersection on the east-west road and that was the only reason he could think of as to why he didn't see the plaintiff. The testimony of deputy sheriff White fixed the point of impact at twelve feet, six inches from the east entrance of the intersection and approximately four feet and two inches from the north edge of the intersection. He determined the point of impact by the tire markings on the gravel.
The weather was clear, the road was dry and graveled within the intersection. There were no stop signs or traffic controls and both roads were straight and level leading up to the intersection. The north road was twenty-two feet wide. The south road was twenty-two and a half feet wide. The east road was twelve feet wide and the road west of the intersection was thirteen feet wide. The intersection also had four curbed side lanes so that drivers desiring to turn could do so without using the center lane leading to the center of the intersection. Mr. Oberzan testified he was driving between fifty and fifty-five miles per hour when he applied his brakes. Miss Canfield testified that she was driving about thirty-five miles an hour when she entered the intersection She further testified that as she approached the intersection she did not attempt to stop or make any turn as she thought she had plenty of time to go across. The front of the Pontiac driven by Oberzan struck the Canfield Chevrolet on the left-hand side at the point of impact.
Dr. I. J. Waxse, plaintiff's attending physician, called as a witness, testified that plaintiff was in shock and severe pain following the accident. X-rays were taken by Dr. Waxse and disclosed that plaintiff had suffered multiple fractures from the second through the eighth left ribs, a fracture of the lower right humerus and a possible oblique displacement.
The collision was investigated by deputy sheriff White, of Labette county, who did not arrive at the scene until about nine P.M.
At the conclusion of plaintiff's evidence defendant Oberzan filed and argued a motion to dismiss and a motion for directed verdict on the grounds of contributory negligence of plaintiff. The motions were overruled by the court. At the conclusion of the evidence of both parties defendant Oberzan filed a motion for directed verdict which was overruled by the court. Nine requested instructions were submitted by defendant Oberzan, the court giving one (instruction number five) and defendant Oberzan objected to the court's failure to submit the remaining requested instructions. Defendant Oberzan objected to instruction twenty-one on the grounds that it was misleading, erroneous and inadequate to instruct the jury on the question of contributory negligence. The court submitted forty instructions to the jury. The jury returned two verdicts, one in favor of McKinney against Oberzan for damages to McKinney's Pontiac, from which there is no appeal, and a second verdict in favor of plaintiff Canfield and against Oberzan for $10,750. In addition to their general verdicts answers to interrogatories were returned as follows:
'Answer: No.
'Answer: Yes.
'Answer: Failure to observe proper precaution for safety at intersection.'
Judgments were entered on the verdicts. Defendant Oberzan filed motions for new trial and for judgment in accordance with his motion for directed verdict which were argued and overruled by the court. Oberzan duly perfected his appeal to this court, specifying nine points of error, the fifth of which has been abandoned.
The appellant Oberzan principally argues that appellee Canfield was guilty of contributory negligence which barred her recovery. In support of his position on this point appellant contends that contributory negligence barring recovery by Canfield was established by her own testimony and that of her father and mother. In support of his contention, appellant cites the following testimony adduced on cross examination of Miss Canfield:
'Answer: Yes.'
Do you recall that?
'A. Yes.
'Q. 'Question: Once when you passed the Goedeke House?
'A. Yes.
'Q. 'Question: That was when you were a quarter of a mile, and on the second time when you were about an eighth of a mile?
'Answer: Yes.'
Do you recall that question and answer?
'A. Yes, I think so.
'Q. 'You didn't look again then, before you had the impact?
Is that the question and answer?
'A. Yes.
'Q. 'Question: Where were you when you made that decision that you had plenty of time to cross the intersection?
'Answer: Well, both times.'
Do you recall that question...
To continue reading
Request your trial
-
Borggren v. Liebling
...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 Whether the plaintiff is guilty of contributory negl......
-
Sweaney v. United Loan & Finance Co.
...the questions of law involved, and we find no error justifying a reversal.' (l. c. 450, 280 P.2d at 622.) See, also, Canfield v. Oberzan, 196 Kan. 107, 115, 410 P.2d 339. We have examined the court's 21 instructions to the jury and are of the opinion they correctly stated the law so as to p......
-
State v. Schroeder
...uncertainty was expressed and no questions were put to the judge on the subject. We find no grounds for complaint (see Canfield v. Oberzan, 196 Kan. 107, 410 P.2d 339). Appellant raises a jurisdictional question, in effect attacking constitutionality of our judicial department reform act of......
-
Hollinger v. Jane C. Stormont Hospital and Training School for Nurses
...is contained in the instructions given is too well established in this jurisdiction to require extensive discussion. Canfield v. Oberzan, 196 Kan. 107, 410 P.2d 339 (1966); Kettler v. Phillips, 191 Kan. 486, 382 P.2d 478 (1963); Goldman v. Bennett, 189 Kan. 681, 371 P.2d 108 (1962). Request......