Clark v. Southwestern Greyhound Lines, Inc.
| Decision Date | 11 June 1938 |
| Docket Number | 33879. |
| Citation | 79 P.2d 906,148 Kan. 155 |
| Parties | CLARK v. SOUTHWESTERN GREYHOUND LINES, Inc., et al. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
In testing sufficiency of evidence as against demurrer, court will consider plaintiff's evidence as true, disregard that unfavorable to plaintiff, and not weigh any part that is contradictory or any differences between plaintiff's direct and cross-examination.
Motorbus companies carrying passengers for hire are "common carriers" of those passengers, and, as such, are required to use the greatest skill, care, and foresight to avoid injuries to their passengers.
The mere violation of statute regulating speed is not in itself sufficient to make operator of motor vehicle guilty of actionable negligence in collision of automobiles, but to render him liable it must appear that the speed contributed to the collision and was the proximate cause of the injuries sustained. Gen.St.1935, 68-152h.
In action by passenger against motorbus company for injuries sustained in collision between bus and truck, evidence was insufficient to warrant conclusion that speed of bus in excess of speed permitted by statute was the proximate cause of the collision. Gen.St.1935, 68-152h.
A motorist on a public highway is not entitled to insist on his right to a full half of the highway regardless of consequences, but, when on the proper side of the highway, he can presume that motorist approaching from opposite direction on wrong side of highway will turn over to the proper side in time to avoid a collision, and, under those circumstances need not anticipate that the other motorist will not do so.
Where driver of motorbus, on discovering that truck driver would not get over to his proper side of the highway in time to avoid collision, turned the bus to his right off the paved portion of the highway and onto the shoulder of the highway driver of motorbus was not guilty of negligence because he did not drive the motorbus further to the right or because he did not turn to the right sooner in anticipation that truck driver would not return to his proper side of the highway.
Where plaintiff in action against motorbus company for injuries sustained in collision between motorbus, in which plaintiff was a passenger, and truck, failed to prove that driver of motorbus was negligent, court properly sustained demurrers to plaintiff's evidence.
1. 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 and disregard that unfavorable to plaintiff, and shall not weigh any part that is contradictory, nor weigh any differences between his direct and cross-examination, and, if so considered, there is any evidence which sustains the plaintiff's case, the demurrer should be overruled.
2. Motor bus companies carrying passengers for hire are common carriers of such passengers, and as such are required to use the greatest skill, care and foresight to which they are in their nature susceptible to avoid injuries to their passengers.
3. The mere violation of a statute regulating speed is not in itself sufficient to make the operator of a motor vehicle guilty of actionable negligence in a collision of automobiles; to make him liable it must appear that the speed contributed to the collision and was the proximate cause of the injuries sustained.
4. The driver of a motor vehicle upon a public highway is not entitled to insist on his right to a full half of the highway regardless of consequences, but when on his proper side of the highway, he has the right to presume that the driver of a car approaching from the opposite direction and on the left-hand or wrong side of the highway will get over on his proper side in time to avoid a collision, and, under such circumstances, does not have to anticipate he will not do so.
5. Where, under the circumstances indicated in the foregoing paragraph, the driver of the motor bus discovers the driver of the approaching car will not get over on his proper side of the highway in time to avoid a collision, and turns the bus to his right off the paved portion of the highway and upon the shoulder of the highway, he is not guilty of negligence because he does not drive his motor bus further to the right or because he did not turn to the right sooner in mere anticipation the other driver would not return to his proper side of the highway.
6. The record examined and held, the trial court did not err in sustaining defendants' demurrers to plaintiff's evidence.
Appeal from District Court, Washington County; Tom Kennett, Judge.
Action by Selma Clark against the Southwestern Greyhound Lines Inc., the Cardinal Stage Lines Company, and others for injuries sustained by the plaintiff when a motorbus in which she was riding collided with a truck. From an order sustaining a demurrer to her evidence and from a judgment in favor of the demurring defendants, the plaintiff appeals.
J. R. Hyland and H. N. Hyland, both of Washington, and Will A. Kelly and William M. Kelly, both of Chicago, Ill., for appellant.
C. H. Brooks, Howard T. Fleeson, Fred W. Aley, Carl G. Tebbe, Wayne Coulson, and Paul R. Kitch, all of Wichita, T. M. Lillard, O. B. Eidson, and Philip H. Lewis, all of Topeka, and Farel R. Lobaugh, of Washington, for appellees.
Plaintiff appeals from an order sustaining a demurrer to her evidence and from a judgment in favor of the demurring defendants.
Plaintiff's amended petition alleged that she purchased a ticket from the Southwestern Greyhound Lines, Inc., at McPherson, Kansas, for Chicago; that she was transported to Salina, where she was placed on an eastbound bus operated by the defendant The Cardinal Stage Lines Company; that the bus was going eastward between Rossville and Silver Lake, when it was approached by a truck going westward operated by the defendants Bradley and Gardner. The above matters were admitted by the pleadings, as was the fact there was an accident in which plaintiff received injuries. It was alleged that the bus and the truck were so carelessly and negligently operated while attempting to pass each other that they collided; that the bus was driven along and upon the center of the highway so as to project the bus off its part of the highway and over upon the side on which the truck was being operated, and that the truck was driven along and upon the center of the highway so as to project the truck over and upon the side of the highway on which the bus was being driven. It was also alleged that each vehicle was being driven at an excessive, improper and unlawful speed, and that the driver of each failed to give suitable warnings of their improper positions on the highway by use of lights and horn signals, and each, seeing the improper position of the other on the highway, failed to stop immediately upon the appearance of the impending collision; that the drivers of both vehicles were operating their respective vehicles while in a drowsy condition and suffering from loss of sleep, in violation of certain rules and regulations of the corporation commission of the state limiting hours of continuous service by a driver. It was further alleged that as a result of the collision some object penetrated the side of the bus from the outside inflicting injuries which need not be detailed here. The answers of the various defendants each denied responsibility for the accident. At the trial, the defendants operating busses demurred to plaintiff's evidence on the ground no cause of action had been proved against them, which demurrers were sustained, and judgment rendered for the demurring defendants. The trial proceeded and plaintiff recovered as against the operators of the truck. Plaintiff now appeals from the ruling on the demurrers and from the judgments in favor of the demurring defendants.
The test for determining the sufficiency of evidence as against a demurrer was considered in Robinson v. Short, Kan., 79 P.2d 903, decided this day, wherein it was said:
"In testing the sufficiency of evidence as against a demurrer, it has been repeatedly held that the court shall consider all of the plaintiff's evidence as true, shall consider that favorable to the plaintiff and disregard that unfavorable, shall make all inferences favorable to the plaintiff, and shall not weigh any part that is contradictory, nor...
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