Carpenter v. Strimple

• Decision Date: 09 June 1962
• Docket Number: No. 42679,42679
• Parties: Alfred Ray CARPENTER, Appellee, v. Bert Logan STRIMPLE, Appellant.
• Court: Kansas Supreme Court

Page 571

372 P.2d 571

190 Kan. 33

Alfred Ray CARPENTER, Appellee, v. Bert Logan STRIMPLE, Appellant.

No. 42679.

Supreme Court of Kansas.

June 9, 1962.

Syllabus by the Court

The record in an action to recover damages for personal injuries sustained as the result of a collision of motor vehicles at an intersection of city streets examined and held to disclose no error.

T. Richard Liebert, Coffeyville, argued the cause, and A. R. Lamb, Paul A. Lamb and Frank W. Liebert, Coffeyville, were with him on the briefs, for appellant.

Roy Kirby, Coffeyville, argued the cause and was on the briefs for appellee.

PARKER, Chief Justice.

This was an action to recover damages for personal injuries sustained by the plaintiff in a motor vehicle collision at the intersection of two city streets. Plaintiff recovered. The defendant has appealed from orders overruling his demurrer to the amended petition, his demurrer to plaintiff's evidence, his motion for a directed verdict, his motion to set aside anseres to special questions, his motion for judgment non obstante, his motion for a new trial, and from the judgment entered by the trial court.

In the face of the record presented the amended petition, which was attacked by demurrer on the basis it failed to state facts sufficient to constitute a cause of action in that it showed on its face that plaintiff was guilty of contributory negligence as a matter of law, is subject to a liberal construction under our statute (G.S. 1949, 60-736). That pleading sets out the facts on which the propriety of the ruling on the demurrer depends and contains other informative allegations essential to a proper understanding of the factual situation existing at the time of the collision in question. Therefore, omitting formal and inconsequential averments, numerous allegations relating to the nature and extent of plaintiff's conceded injuries and resulting damages and the prayer, we shall quote from such pleading at length. It reads:

'* * * Linden Street is and was a north-south street located in a residential area in the northeast section of the city of Coffeyville. It is intersected by Second Street, which runs east and west. Both streets are of blacktop construction, and no traffic control signal exists at the point where said streets intersect. At the point of intersection Linden Street has a travel surface of approximately 20 feet in width and Second Street has a travel surface of approximately 26 feet in width.

'On or about April 7, 1960 at approximately 12:50 p. m., plaintiff (Alfred Ray Carpenter) was driving his Cushman 'cracker box' motor scooter north on Linden Street on his way to work * * *. He was alone. The weather was clear and the road surface was dry. As plaintiff approached the intersection of Linden and Second Streets, his speed was not in excess of 15 miles per hour.

'In the area south east of the place where the two streets intersect, there are no buildings or other obstructions in the immediate vicinity, so that drivers of vehicles approaching the intersection both from the east on Second Street and from the south on Linden Street have, if they observe it, a clear view of each other for a distance of at least one-half block from the intersection.

'As plaintiff reached a point approximately 75 to 100 feet south of the intersection, while riding his scooter on his own or right side of the street, he observed defendant (Bert Logan Strimple), driving a 1941 Oldsmobile 4-door sedan, coming from the east on Second Street toward the intersection. At that time defendant was at least 200 to 250 feet east of the intersection and far enough to the east not to constitute an immediate hazard to plaintiff's continued movement to the north and into said intersection. * * *

'Plaintiff continued in his northward movement at the same speed, looking both to his left and ahead of him until he reached a point approximately 10 to 15 feet south of the south edge of the intersection when he again looked to his right. Plaintiff's motor scooter was in his own right hand lane of travel. At that time defendant's vehicle was at least 50 feet east of the intersection, was in approximately the center of Second Street, and it was continuing at the same speed and without any reduction thereof. Plaintiff estimates defendant's speed at that time to be approximately 35 to 40 miles per hour. Plaintiff immediately applied his brakes and began stopping his motor scooter and attempted to maneuver it to the right to avoid being hit broadside by defendant who continued his westward direction without observing plaintiff, without reducing his speed and without maneuvering to avoid an impending collision.

'After plaintiff entered the intersection, defendant then entered the intersection. By attempting to maneuver his moter scooter to the right, the scooter was caused to spin and plaintiff was able to avoid being struck broadside by defendant's automobile, but was unable to avoid making contact with the same at about the leading edge of the left front door thereof. The collision occurred in approximately the center of the intersection.

'Defendant still did not slow or swerve his vehicle but continued westward at the same rate of speed as before, and as his car went by plaintiff, who was still on his motor scooter, plaintiff's right leg was caught under the left rear bumper of defendant's car and the leg was so badly severed that it became necessary shortly thereafter to amputate the same.

'Defendant was negligent in the operation of his vehicle in one, more or all of the following particulars:

* * *

* * *

'(c) In failing to yield the right of way to plaintiff whose motor scooter had entered the intersection ahead of defendant's vehicle.

* * *

* * *

'(e) In failing to reduce the speed of his vehicle as he approached the intersection contrary to law.'

Following the overruling of the dmurrer to the amended petition defendant filed his answer wherein he admitted that an accident, involving an automobile driven by him and a motor scooter driven by plaintiff, occurred at approximately the time and place alleged in the amended petition; denied generally all other allegations contained in that pleading; and charged that any damages or injuries sustained by plaintiff were occasioned by and were the proximate result of plaintiff's own acts of negligence (describing them) at or about the time and place of the accident.

In his reply plaintiff denied generally all allegations of the answer.

With issues joined as indicated the cause came on for trial by a jury. Plaintiff adduced his evidence and rested. Thereupon defendant demurred to such evidence on the ground it did not prove a cause of action in favor of the plaintiff and against him in that such evidence showed plaintiff was guilty of negligence that contributed to his injuries. This demurrer was overruled. Defendant then presented his evidence and, at the close of all the evidence, did not renew his demurrer. Thereupon the court, after giving written instructions, submitting special questions and permitting arguments by counsel for the respective parties, on April 26, 1961, directed the jury to retire to the jury room for the purpose of considering its general verdict and its answers to the submitted special questions. No verdict having been reached by the jury by 5 p. m. of that day the court admonished the jury and recessed until 9 a. m. on April 27, 1961. On the morning of that date counsel for the parties appeared in open court. Defendant asked leave to file a motion for a directed verdict. Plaintiff objected. The court granted defendant's request and, after the motion had been filed, overruled it. Subsequently the jury was directed to again retire to the jury room and further deliberate. Later, and on the same day, it returned into open court with a general verdict in favor of plaintiff and its answers to the submitted special questions. These were accepted by the trial court and the jury was then discharged.

The special questions and the answers read:

'1. Did the motor scooter strike the rear of the automobile driven by the defendant? Answer: No.

'2. If you answer Question No. (1) in the negative, then state the point on defendant's automobile where the motor scooter struck defendant's automobile. Answer: Left front door.

'3. At the time of the collision, was part of defendant's automobile in the west portion of the intersection of Second and Linden Streets? Answer: Yes.

'4. If you answer Question No. (3) in the negative, then state where the front of defendant's automobile was located in the intersection of Second and Linden Streets at the time of the collision. Answer:

'5. Was any part of defendant's automobile in the intersection at the time plaintiff's motor scooter entered the intersection? Answer: No.

'6. If you answer Question No. (5) in the negative, then state whether the automobile driven by the defendant and the motor scooter entered the intersection at the same time. Answer: No.

'7. How far to the east could plaintiff have seen defendant's automobile as it approached the intersection? Answer: Approx. 230 feet.

'8. Did you find the defendant guilty of any act or acts of negligence which were the proximate cause of plaintiff's injuries? Answer: Yes.

'9. If you answer Question No. (8) in the affirmative, then state the act or acts of negligence of which you find defendant guilty. Answer: Not yielding Rightway or slowing down for intersection.

'10. Do you find that the plaintiff's injuries were occasioned by the negligence of both the plaintiff and defendant? Answer: No.'

Within three days after the jury reached its decision defendant filed his motion for a new trial, his motion to set aside the answers to special questions and his motion for judgment non obstante. On May 5, 1961, the court upon request of the defendant postponed a hearing on the foregoing motions but, on plaintiff's request, approved the general verdict...