Claggett v. Phillips Petroleum Co.

• Decision Date: 11 December 1937
• Docket Number: 33524.
• Citation: 146 Kan. 846,73 P.2d 1015
• Parties: CLAGGETT v. PHILLIPS PETROLEUM CO. et al.
• Court: Kansas Supreme Court

73 P.2d 1015

146 Kan. 846

CLAGGETT v. PHILLIPS PETROLEUM CO. et al.

No. 33524.

Supreme Court of Kansas

December 11, 1937

Syllabus by the Court.

Action of the trial court in allowing plaintiff a new trial after jury returned a verdict for plaintiff, answering special questions in favor of defendants, would not be reviewed where there were inconsistencies between verdict and answers to special questions, conduct of jury tended to show that answer to a special question had been reached by means of a quotient verdict, and one juror had made statements as to his personal knowledge of scene of accident involved in the action.

In action for injury sustained by pedestrian when struck by truck at intersection, defendants' demurrer to plaintiff's evidence that he looked both ways before stepping into street, that he thought he could get across ahead of truck, that truck was traveling 40 to 45 miles an hour, that he was struck near middle of street, and that truck swerved 4 or 5 feet and then cut in toward him, was properly overruled.

1. In an action to recover damages for injuries sustained when plaintiff was hit by defendant's truck, where it appears that the trial court was not satisfied that a correct result had been reached by the jury, it was its duty to grant a new trial.

2. In an action to recover damages for injuries sustained when plaintiff was hit by defendant's truck, the record is examined and it is held that the demurrer of defendants to the evidence of plaintiff was properly overruled.

Appeal from District Court, Wyandotte County, Division No. 1; Edward L. Fischer, Judge.

Action by Huron Claggett against the Phillips Petroleum Company and another. From a judgment awarding the plaintiff a new trial after the jury returned a verdict for plaintiff, answering special questions in favor of the defendants, the defendants appeal.

Judgment affirmed.

Lee Judy, of Kansas City, for appellants.

Joseph Cohen, of Kansas City, for appellee.

SMITH Justice.

This was an action to recover damages for injuries sustained when plaintiff was hit by one of defendant's trucks. After the jury returned a verdict for plaintiff, answering special questions in favor of the defendants, the court sustained the motion of plaintiff for a new trial. Defendants appeal.

After the verdict the attention of the trial court was called to the inconsistencies between the general verdict and the answers to special questions and to the conduct of some of the jurors, especially one who was shown to have made statements as to his personal knowledge of the scene of the accident, also to conduct of the jury which tended to show that the answer to one of the special questions had been reached by the jury by means of a quotient verdict. The trial court considered all these matters and expressed itself as not being satisfied with the result of the trial. Under such circumstances this court will not review the action of the trial court in allowing a new trial. See Hiattville State Bank v. Land, 125 Kan. 108, 263 P. 1073. See, also Carlgren v. Saindon, 129 Kan. 475, 283 P. 620.

Ordinarily the above would dispose of this appeal. However, at the close of the evidence of plaintiff, defendants demurred to it on the ground that it did not show facts sufficient to prove a cause of action against defendants and in favor of plaintiff. The argument is that the evidence failed to show that defendants were guilty of any negligence but, on the other hand, did show that plaintiff was guilty of contributory negligence that would prevent him from recovering.

The petition alleged that North Third street was an arterial highway running north and south in Kansas City, Kan., and intersected New Jersey avenue; that on or about the 7th day of December about 6 o'clock in the evening plaintiff was crossing from the northwest corner of the intersection of New Jersey avenue and North Third street for the purpose of going to the east side of North Third street, in a prudent manner, and that while he was attempting to negotiate the crossing he was run into by a motor truck owned by the defendant company and operated by its employee, knocking him down, and causing him injuries. The petition alleged that plaintiff's injuries were caused by the negligence of defendants in that the defendant Fisher drove the truck at a high and dangerous rate of speed, that is, in excess of 25 miles per hour; that the truck was driven without having it equipped with sufficient lights on the front thereof; that the defendants violated an ordinance of the city as follows: "The operator of any vehicle shall yield the right of way to a pedestrian crossing the roadway at the end of a block, except at intersections where the movement of traffic is being regulated by police officers or traffic control signs, or at any point where a pedestrian tunnel or overhead causeway has been provided."

The petition further alleged that defendants were negligent in driving the truck in violation of another ordinance of the city which provided that no person should drive a vehicle at a greater speed than was reasonable and prudent; that defendants were negligent in not having their truck equipped with headlights sufficient to reveal objects 150 feet ahead that defendants saw, or by the exercise of reasonable care and diligence, could, and should have seen the plaintiff in a position of imminent peril from which he could not extricate himself, and could have avoided striking him by slackening the speed, turning aside, or stopping the truck; that the defendants failed and neglected to turn their truck aside, stop it, or slacken the speed thereof; that the defendants failed to sound any warning; that they failed and neglected to keep a sharp lookout for pedestrians crossing North Third street at this point and particularly this plaintiff; and that they failed and neglected to keep their truck under...