Crowder v. Williams

• Decision Date: 07 June 1924
• Docket Number: 24,983
• Parties: LAURA CROWDER, Appellant, v. R. B. WILLIAMS, Appellee
• Court: Kansas Supreme Court

226 P. 774

116 Kan. 241

LAURA CROWDER, Appellant, v. R. B. WILLIAMS, Appellee

No. 24,983

Supreme Court of Kansas

June 7, 1924

Decided January, 1924

Appeal from Labette district court; ELMER C. CLARK, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Automobile Running Down Pedestrian--Motion for Continuance--Judicial Discretion. A motion for a continuance based on the fact that a litigant in the action was a member of the jury, and had been in association with the other jurors of the regular panel for a month, was addressed to the trial court's discretion, and its ruling denying the motion, in the absence of any showing of prejudice except conjecture, does not constitute error.

2. SAME--Exclusion of Testimony. Error assigned in exclusion of testimony examined and not sustained.

3 SAME--Instructions. Error assigned in the instructions examined and not sustained.

4. SAME--Refusal of Requested Instructions--Not Error. Where a defendant's negligence as charged in plaintiff's petition was established by the evidence and specially found by the jury, it is immaterial that other instructions requested by plaintiff, designed to aid the jury in ascertaining the fact of defendant's negligence, were refused.

5. SAME--Special Questions Refused. Error assigned in refusing to submit special question to jury examined and not sustained.

6. SAME--Plaintiff's Negligence Bars Recovery. In an action for damages for injuries sustained by plaintiff by being struck by defendant's automobile while plaintiff was hurrying diagonally across a city street at a place other than a street intersection, the evidence and special findings examined, and held, that judgment on the general verdict in favor of defendant was proper because of plaintiff's contributory negligence as established by her own testimony.

Elmer W. Columbia, of Oswego, Charles Stephens, and F. E. Dresia, of Columbus, for the appellant.

Archie D. Neale, of Chetopa, and E. L. Burton, of Parsons, for the appellee.

OPINION

DAWSON, J.:

The plaintiff was run down by defendant's automobile in a street in Columbus, and failed in her action for damages because of her contributory negligence as found by the jury. She appeals, assigning various errors, which will be noted:

First, plaintiff complains because her motion for a continuance was overruled. This motion was grounded on the fact that defendant was a member of the regular panel of jurors serving at that term of court, and that his association and acquaintance with his fellow jurors in court service for about a month would tend to prevent plaintiff from receiving a fair and impartial trial. But the fact that defendant had served for a month with the other jurors of the regular panel would not necessarily turn them aside from their duty. Some showing of prejudice other than conjecture would be required before reversible error could be predicated on this incident. There being no such showing, the motion was addressed to the trial court's discretion, and its judgment thereon was conclusive. (Zinn v. Updegraff, 113 Kan. 25, 38, 39, 213 P. 816.)

The next error urged relates to the exclusion of testimony. The record reads:

"Q. Where was this car standing with reference to the north line of travel there?

"Objected to by defendant as incompetent, irrelevant and immaterial. Sustained. Plaintiff excepts."

The record shows no light on this subject. What the witness's answer would have been was never supplied. Consequently the point is unavailing in this appeal. ( Scott v. King, 96 Kan. 561, 152 P. 653; Leach v. Urschel, 112 Kan. 629, 212 P. 111.)

Complaint is also made because a certified copy of the ordinance of the city of Columbus regulating the speed of automobiles was excluded. This was immaterial because it was substantially the same as the state law, which was sufficiently explained to the jury, and the jury's finding, in effect, was that defendant was violating the speed law at the time his automobile struck and injured the plaintiff. The suggestion is made, however, that the city ordinance limits the speed to six miles per hour at street crossings. Counsel for plaintiff say that the accident occurred at a street crossing. Not so, however. The testimony of plaintiff and her witnesses, with none to the contrary, was that the accident was on Mill street, which runs east and west, at some indefinite point east of its intersection with Illinois street, which runs north and south, and that the accident occurred on the north side of Mill street, east of Illinois street, "right near the crossing"; and that the plaintiff had reached that point by angling northwest from the south side of the street, where she had alighted from another automobile headed eastward. She testified:

"Dora Crowder was driving the car I was in. I told her I wanted to stop at home, and she just forgot to stop there till I got a little further on, and she turned to the right and stopped along the side of the street. . . . The car stopped facing east; I got out on the south side. . . . When I got out of the car I went west to the rear of the car, then started northwest across the street. I was in a hurry to get across the street. . . . As I was walking northwest a car came from the east. I had my back to it just a little. After I got around the rear end of the car and was walking northwest I did not turn my head around to look east to see if a car was coming. When I got out of the car I looked east. As I was walking northwest toward my home I looked to the west and then went across. I looked west and then started across. I suppose I looked northwest. A person would naturally look the direction they went. I was walking fast. . . . I stepped out and looked and went. . . . I told them I didn't look east when I came around. I got out and looked east. . . . I did not see Williams' car till I was hit. There was not anything to prevent me looking east after I came from behind the car. . . . It is a block from Illinois street to East avenue. As I stepped out I was facing south; I turned around this way to look east; I didn't see anything up there. . . .

"The angle I went across the street was almost due northwest. I don't know whether it took me five or fifteen seconds to go across there."

Plaintiff's kinswoman testified in her behalf:

"I am the Mrs. Dora Crowder who was driving the car the plaintiff was riding in just prior to her injury. I stopped the car to the south side of the street. . . . The accident occurred on the north side of the street, right near the crossing. . . . I stopped the car just a short distance east on Mill street, the car facing east. . . . She got out of the car immediately after I stopped. She went around my car west. . . . Anybody could have seen the cars if they had been on the north side of my car and looking east."

We give space for the testimony quoted above, not alone because it shows that the provision of the city ordinance regulating speed at the street crossings had no relation to the accident, but also because the other assigned errors urged are largely determinable thereby.

The next complaint pertains to the instructions. The evidence disclosed that the street was unpaved. There were two well-defined paths of travel--within a few feet of each other near the center of the street. The trial court instructed the jury:

"When plaintiff reached the center of Mill street going in a northwesterly course it was her duty under the law to have looked east along the north side of Mill street before attempting to cross to the north side thereof, for cars that might be coming west on said north side of the street, and if she failed to do so, and you so find and believe from the evidence herein, and by so doing she would have seen defendant's car and could have stopped and thus avoided the injury, then she was guilty of negligence contributing to her injury, and she cannot recover herein and your verdict must be in favor of defendant and against the plaintiff, notwithstanding the fact, if it be a fact, that defendant may have been guilty of negligence as charged by the plaintiff."

This instruction was apparently formulated after examination of the analogous case of Hanabery v....