O'Connell v. Lusk

• Decision Date: 11 December 1926
• Docket Number: 27,067
• Parties: ANNA O'CONNELL, Appellee, v. WILLIAM J. LUSK, Appellant
• Court: Kansas Supreme Court

250 P. 1059

122 Kan. 186

ANNA O'CONNELL, Appellee, v. WILLIAM J. LUSK, Appellant

No. 27,067

Supreme Court of Kansas

December 11, 1926

Decided July, 1926.

Appeal from Sedgwick district court, division No. 1; J. EVERETT ALEXANDER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

MOTOR VEHICLES--Lability for Injuries--Negligence--Contributory Negligence--Instructions. The proceedings considered in an action for damages for personal injuries resulting from an automobile accident, and held, assignments of error relating to qualification of a witness, refusal of the court to give requested instructions, and soundness of the verdict finding defendant guilty of negligence and acquitting plaintiff of contributory negligence, are without merit.

O. H Bentley, of Wichita, for the appellant.

Robert C. Foulston, W. E. Holmes, D. W. Eaton, George Siefkin and Sidney L. Foulston, all of Wichita, for the appellee.

OPINION

BURCH, J.:

The action was one for damages for personal injuries sustained by plaintiff when she was struck by defendant's automobile. Plaintiff recovered, and defendant appeals.

Defendant contends he was without fault, and plaintiff was guilty of contributory negligence. In a narrative apparently intended to take the place of an abstract of the testimony, defendant states the accident occurred under a railroad viaduct in the city of Wichita, on a roadway given over to vehicular traffic, and not at a street crossing. Plaintiff abstracts testimony showing the accident occurred on a crosswalk used by pedestrians in traveling from the steps on one side of the viaduct to the steps on the other side.

The narrative referred to states that defendant was driving to his work in no special haste, a statement too indefinite to enlighten the court. The jury found defendant was not driving his car at a rate of speed less than ten miles per hour, and plaintiff abstracts testimony showing the speed of the car at the time of the collision was not less than twenty miles per hour. An ordinance of the city of Wichita limited the speed of a vehicle passing under a track elevation to twelve miles per hour, and plaintiff abstracts testimony of defendant that after he saw plaintiff he could not stop or turn aside in time to avoid collision.

The jury found specially that defendant's vision was obscured by a car in front of him and by the foggy state of the weather, but that the injury plaintif...