Cruse v. Dole
| Decision Date | 11 April 1942 |
| Docket Number | 35464. |
| Citation | 124 P.2d 470,155 Kan. 292 |
| Parties | CRUSE v. DOLE. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
"Contributory negligence" is conduct of plaintiff which falls below standard to which he as a reasonable man should conform for his own protection and which is a legally contributing cause cooperating with defendant's negligence in bringing about plaintiff's harm.
Where facts relating to contributory negligence are such that men of reasonable minds might reach different conclusions, the question is for trier of fact, otherwise it is one of law.
The fact that burden of establishing contributory negligence rests upon defendant does not preclude defendant from taking advantage by demurrer of plaintiff's own evidence showing him guilty of negligence which precludes his recovery.
Evidence established that driver of automobile in which deceased was riding at time of collision was guilty of contributory negligence, but failed to establish that driver's contributory negligence was imputable to deceased, so as to bar recovery for her death.
Evidence failed to establish that deceased who was fatally injured when automobile in which she was riding, and which was driven by her husband, collided with another, was guilty of contributory negligence, so as to bar recovery for her death.
Generally in an action for wrongful death, recovery is limited to pecuniary loss sustained by statutory beneficiaries.
Generally where husband is guilty of contributory negligence but deceased wife is not, husband can not recover in an action for wrongful death of his wife, and any amount he would otherwise have received is deductible from amount recoverable by survivors as a group, the rest being distributed among survivors as though husband did not exist.
In action for wrongful death, where trial court instructed jury that if husband, driver of automobile in which wife was riding when she sustained fatal injuries was guilty of contributory negligence, his loss should not be considered but his contributory negligence did not affect his right as administrator to recover for benefit of his two adult children, and if jury so found, verdict would be limited to nominal damages of one dollar, and no objection was made thereto, the instruction became the "law of the case".
1. Contributory negligence is conduct on the part of a plaintiff which falls below the standard to which he should conform for his own protection and which is a legally contributing cause, cooperating with the negligence of the defendant in bringing about the plaintiff's harm. It is conduct which falls short of the standard to which a reasonable man should conform in order to protect himself from harm.
2. When the facts relating to contributory negligence are such that men of reasonable minds might reach different conclusions, the question is for the trier of the fact, otherwise it is one of law.
3. While the general rule is that the burden of establishing the plaintiff's contributory negligence rests upon the defendant, if the plaintiff's own evidence shows him guilty of negligence which precludes his recovery, the defendant may take advantage by demurrer.
2. That such contributory negligence was not imputable to the wife, and
3. That the wife was not guilty of contributory negligence.
5. Generally, in an action for wrongful death, recovery is limited to pecuniary loss sustained by the statutory beneficiaries.
6. Where in such an action the trial court instructed the jury in substance that if the husband, driver of a car in which his wife was riding when she sustained the injuries causing her death, was guilty of contributory negligence he was individually bound and his loss should not be considered, but it did not affect his right as administrator to recover for the benefit of his two adult children, and if the jury so found the verdict must be limited to nominal damages of one dollar, and no objection was made to the instruction, it became the law of the case.
Appeal from District Court, McPherson County; Kenneth G. Speir, Judge.
Action by C. T. Cruse, administrator of the estate of Mary Cruse, deceased, against Raleigh R. Dole, for wrongful death of plaintiff's deceased. From judgment entered, defendant appeals, and the plaintiff cross-appeals.
Reversed and remanded with instructions.
Wayne Coulson, of Wichita (C. H. Brooks, Howard T. Fleeson, Carl G. Tebbe, and Paul R. Kitch, all of Wichita, and J. G. Somers, of Newton, on the brief), for appellant.
J. Rodney Stone, of Newton, and George R. Lehmberg, of McPherson (Bernard Peterson, of Newton, and J. Rodney Rhoades, of McPherson, on the brief), for appellee.
This was an action to recover damages for wrongful death. The deceased person was Mary Cruse, who was survived by her husband and two adult daughters. The husband was appointed as administrator of his wife's estate and brought the action in his representative capacity.
The petition alleged that on October 27, 1940, Mary Cruse was riding in an automobile driven by her husband on a country road west of Newton, and in a collision with an automobile negligently operated by the defendant, she sustained injuries from which she died. The answer of the defendant, among other things, alleged the collision occurred solely as the result of negligence of the husband, who was then and there acting for his wife, and through the negligence of Mary Cruse. Plaintiff's reply properly denied allegations of agency.
Trial was had by a jury. Defendant's demurrer to plaintiff's evidence was overruled, and the trial proceeded. The jury answered special questions and returned a verdict in favor of plaintiff. Defendant's motions for judgment notwithstanding the verdict and for a directed verdict were denied and from those several rulings defendant appeals. Plaintiff's motion to set aside two answers to special questions was sustained in substance. His motion for a new trial was denied, and from the latter ruling he has appealed.
We shall consider first the defendant's contention the trial court erred in not sustaining his demurrer to plaintiff's evidence. The gist of this contention is that the plaintiff, in his individual capacity, and the deceased were each guilty of contributory negligence, and we review the testimony only as it pertains to that contention.
We first summarize the evidence with respect to the site of the accident, which occurred at an intersection of a county road running north and south and a township road running east and west. At the intersection there were no stop signs on either road. The county roadway was about twenty-eight feet wide and the township roadway was slightly narrower. To avoid confusion with respect to distances we shall refer to the intersection as being the portion of both roads bounded by the outside lines thereof. From a contour map it appears the county road had a gradual rise of three and one-half feet in a distance of five hundred feet north from the intersection. At some considerable distance east of the intersection the township road was level. It then sloped downward to a bridge seventy-five feet long, the west end of which was about one hundred sixty-five feet east of the intersection. From the bridge to the intersection the road had a slope upward of ten feet. Westward from the east side of the intersection the road slopes upward one foot in the next seventy-five feet. A photograph taken about three hundred sixty feet east of the intersection and looking toward it shows there was a danger sign a short distance east of the bridge. From the contour map and other testimony, it appeared that a person seated in a motor car traveling west on the township road could see considerable distances to the north on the county road until the car went on the bridge, and then for some distance vision to the north would be obstructed by rise of intervening lands and growth thereon, but that at a point fifty feet east of the east line of the intersection there was a clear view to the north of over three hundred feet, the range of vision northward increasing as the intersection was approached.
Plaintiff was the only witness testifying in his behalf with respect to the accident. He stated that on Sunday afternoon, October 27 1940, he and his wife went for a ride, that he was driving the car and they were proceeding westwardly on the township road. He drove down the hill toward the bridge but did not see the danger sign. When crossing the bridge he could not see any distance north or south. After crossing the bridge he went up the incline, and when about twenty-five to thirty feet east of the intersection, he was traveling from ten to fifteen miles per hour. At that point he looked to the north and saw defendant's car between two hundred fifty and three hundred feet to the north and approaching him, and thought it had a speed of thirty to thirty-five miles per hour. He looked south and saw no one coming. He stated the intersection was rather a blind corner and that at the rate he was driving he could stop in ten feet. After he saw the defendant's car he did not look again to the north but proceeded west and into...
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