Clark v. Southwestern Greyhound Lines, Inc.

• Decision Date: 12 June 1937
• Docket Number: 33396.
• Citation: 69 P.2d 20,146 Kan. 115
• Parties: CLARK v. SOUTHWESTERN GREYHOUND LINES, Inc., et al.
• Court: Kansas Supreme Court

69 P.2d 20

146 Kan. 115

CLARK v. SOUTHWESTERN GREYHOUND LINES, Inc., et al.

No. 33396.

Supreme Court of Kansas

June 12, 1937

Syllabus by the Court.

On application for new trial because evidence does not sustain verdict, trial court must weigh evidence although conflicting and if verdict is clearly against weight of evidence and does not meet approval of court, verdict should be set aside.

The Supreme Court will not reverse an order of trial court allowing or denying a motion for new trial unless abuse of discretion is apparent.

In action for injuries sustained by passenger when bus in which she was riding collided with truck on highway, against truck owner, bus owner, and another company which had transported passenger part of way, granting of motion for new trial and refusing to limit scope of such new trial on ground that the general and special verdicts were unsupported by weight of evidence, was not an abuse of trial court's discretion.

1. Following Ireton v. Ireton, 62 Kan. 358, 63 P. 429 it is held: "Upon an application for a new trial because the evidence does not sustain the verdict, it is the duty of the trial court, though not of an appellate court, to weigh the evidence, although conflicting, and if the verdict is clearly against the weight of the evidence and does not meet the approval of the court, it should be set aside."

2. The Supreme Court will not reverse an order of the trial court allowing or denying a motion for a new trial unless abuse of discretion by the trial court is apparent.

3. The record in an action for damages examined, and held, the trial court did not err either in granting motions for a new trial or in refusing to limit the scope of such new trial.

Appeal from District Court, Washington County; Tom Kennett, Judge.

Action by Selma Clark against the Southwestern Greyhound Lines Incorporated, and others. From orders and judgments granting new trials, defendants appeal and plaintiff cross-appeals.

See also, 144 Kan. 344, 58 P.2d 1128.

J. R Hyland and H. N. Hyland, both of Washington, Kan., and Will A. Kelly and William M. Kelly, both of Chicago, Ill., for cross-appellant.

Thomas M. Lillard, O. B. Eidson, Philip H. Lewis, and Floyd D. Strong, all of Topeka, for appellee, Southwestern Greyhound Lines, Inc.

C. H. Brooks, Howard T. Fleeson, Fred W. Aley, Carl G. Tebbe, Wayne Coulson, and Paul R. Kitch, all of Wichita, and F. R. Lobaugh, of Washington, Kan., for appellee Cardinal Stage Lines Co.

THIELE Justice.

The questions raised on this appeal turn on the rulings of the trial court in sustaining motions for a new trial.

For brevity and clarity, the plaintiff will be referred to as plaintiff, the defendant Southwestern Greyhound Lines, Inc., as Greyhound Lines, the defendant Cardinal Stage Lines Company, as Cardinal Lines, and the defendants Otto Bradley and Otto Bradley and Delbert Gardner, copartners under the firm name and style of Bradley & Gardner, as Bradley and Gardner.

The plaintiff, on July 31, 1934, bought a ticket of defendant Greyhound Lines from McPherson, Kan., to Chicago, Ill. About 5 p. m., at Salina, Kan., she was transferred to a bus operated by defendant Cardinal Lines. At about 10 p. m. at a point near Rossville, Kan., the bus collided with a truck owned and operated by defendants Bradley and Gardner, as a result of which plaintiff received severe injuries for which she sought damages. The negligence charged was that the bus and the truck were so carelessly operated while attempting to pass each other that they collided; that each was so operated it projected over the center of the highway; that each was driven at an excessive and unlawful rate of speed; that the respective drivers failed before the collision to give each other suitable and customary warnings of their improper positions on the highway by use of their lights and horn signals, and that the drivers, each seeing the other's approach, had failed to stop; that the respective drivers were drowsy and suffering from loss of sleep; and that certain rules of the Corporation Commission as to hours of continuous driving were violated.

As far as now need be noticed, the Cardinal Lines answered denying negligence on its part and alleging the collision occurred by reason of the truck's being negligently driven so that a portion of it was on the wrong side of the road. The Greyhound Lines answered, alleging that it had no control or supervision over the Cardinal Lines bus; that the ticket sold plaintiff limited its liability, and it denied generally. Bradley and Gardner answered denying generally and alleging that the Cardinal Lines bus was so operated that its side extended over the center of the highway, and that it was traveling at an excessive rate of speed and unable to stop within the vision of its lights.

A trial resulted in a verdict for plaintiff against the Southwestern Greyhound Lines, Inc., and the Cardinal Stage Lines Company, and the jury also returned answers to special questions submitted.

The Cardinal Lines filed its motion to vacate the general verdict as being contrary to the weight of the evidence and rendered under passion and prejudice as indicated by answers to the special questions; its further motion to set aside the entire special verdict as not supported by the evidence, contrary to the evidence and rendered under influence of passion and prejudice, and to set aside answers to the special questions for the reason they are unsupported by and are contrary to the evidence, and its further motion for a new trial on statutory grounds.

The Greyhound Lines filed its motion for a new trial alleging statutory grounds.

The plaintiff filed her motion for a new trial as against the defendants Bradley and Gardner, the grounds including misconduct of the jury in rendering judgment in favor of these defendants, erroneous rulings and instructions of the court, that the verdict is wholly contrary to the evidence in so far as the said defendants are concerned, etc.

All of these motions were heard and sustained by the trial court "by reason of the fact that the general verdict is contrary to and unsupported by the weight of the evidence, and by reason of the fact that the special verdict is contrary to and unsupported by the weight of the evidence." The defendants Bradley and Gardner perfected an appeal from the order allowing plaintiff a new trial as to them, and plaintiff perfected a cross-appeal from the verdict, order, and judgment in favor of Bradley and Gardner, and from the decision, order, and judgment allowing the other defendants a new trial. Subsequently Bradley and Gardner abandoned their appeal and the matter now stands before us on whether the trial court erred in granting a new trial upon all the issues, or whether the new trial should have been granted only as to Bradley and Gardner and limited to the question of liability.

As has been noted, the trial court granted the new trial as to all parties and as to all issues on the ground the general and special verdicts were contrary to and unsupported by the evidence.

Our reports are replete with decisions respecting the duty of a trial court in ruling on a motion for new trial. Where the complaint is that the evidence does not sustain the verdict the rule has been stated thus: "Upon an application for a new trial because the evidence does not sustain the verdict, it is the...