Cusick v. Miller

• Decision Date: 09 March 1918
• Docket Number: 21,389
• Citation: 171 P. 599,102 Kan. 663
• Parties: FANNIE CUSICK, Appellee, v. W. F. MILLER, Appellant
• Court: Kansas Supreme Court

171 P. 599

102 Kan. 663

FANNIE CUSICK, Appellee, v. W. F. MILLER, Appellant

No. 21,389

Supreme Court of Kansas

March 9, 1918

Decided January, 1918.

Appeal from Cowley district court; OLIVER P. FULLER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Automobile Driver--Contributory Negligence of Plaintiff. A pedestrian, arriving at a street intersection which he desires and attempts to cross, is not necessarily guilty of contributory negligence because he does not look behind him for approaching automobiles.

2. SAME--No Reversible Error in Record. Various assignments of error relating to evidence, instructions, special findings and the general verdict, considered, and held, none of them is sufficient to warrant a reversal.

S. C. Bloss, J. E. Torrance, and O. W. Torrance, all of Winfield, for the appellant.

A. M. Jackson, and A. L. Noble, both of Winfield, for the appellee.

OPINION

BURCH, J.:

The action was one for damages for personal injuries inflicted by the defendant, who drove his automobile over the plaintiff at a street crossing. The verdict and judgment were for the plaintiff, and the defendant appeals.

Seventh street in the city of Winfield extends east and west. It is crossed by Andrews street, which extends north and south. The plaintiff desired to go from the northeast corner to the southwest corner of the intersection. She intended to take a diagonal course, but discovered a team and wagon, followed by an automobile, entering the intersection from the west. She took a course more toward the west than toward the south. As the team and wagon came forward the automobile passed north of them and south of the plaintiff, who was only two or three feet within the north portion of the intersection. Just at this time the defendant approached from the east. Driving his automobile at a speed of twelve miles per hour, the defendant, without warning and without slackening speed, undertook to dart between the wagon and the plaintiff. He knocked the plaintiff down, ran over her, and seriously injured her. The plaintiff was in plain view, and the defendant could have stopped his automobile within the space of two or three feet. With the verdict, the jury returned special findings of fact, which follow:

"1. If plaintiff on approaching 7th avenue had looked to the east could she have seen the defendant's car approaching? A. Yes.

"2. What, if anything, was there to prevent plaintiff from passing straight across 7th avenue from north to south on a line with the sidewalk? A. Wagon and automobile.

"3. As defendant, Miller, approached the intersection of Andrews street with 7th street were there other vehicles in or near the crossing which partly attracted his attention and made it necessary for him to look out for them? A. Yes.

"4. After defendant saw plaintiff in the street and in a dangerous position did he use his best judgment and efforts in trying to avoid the accident? A. No.

"5. After having entered upon the street or intersection of 7th avenue and Andrews in what direction or directions did she move before she was struck by defendant's car? A. South and west.

"6. After the plaintiff stepped upon 7th avenue or the intersection of 7th avenue and Andrews and before the accident, was she delayed or her direct course obstructed by reason of the automobile and the team and wagon on the intersection? A. Yes.

"7. Did the plaintiff just before going south in her effort to cross 7th avenue look east to see if other vehicles or automobiles were coming from that direction? A. No.

"8. Was the plaintiff guilty of negligence which proximately contributed to her injury? A. No.

"9. If you find the defendant was negligent and that such negligence caused the injury complained of, state what particular act or acts, omission or omissions on the part of the defendant caused the injuries. A. Failed to sound horn, failed to put on emergency brake, and driving too fast.

"10. After the defendant discovered the position of the plaintiff in the street did he use all reasonable means within his power under the circumstances to avoid the accident? A. No."

The defendant complains of the introduction of certain evidence.

It is said the plaintiff was allowed to prove the defendant's wealth. What occurred was this: Shortly after the accident deeds of real estate from the defendant to his children were placed on record. The plaintiff desired to show the transfers as tending to establish consciousness of liability and a purpose to evade satisfaction of such liability. The defendant was asked a preliminary question, what property he owned at the time of the accident. He answered that he owned 640 acres of land. He was then asked what he did with the land shortly after the accident. He answered that he still owned it, and explained that the deeds which were placed on record were deeds of other land, made long before the accident. No attempt was made to prove the defendant's wealth. The evidence which the plaintiff expected to obtain would have been proper, the method of examination to obtain it was proper, and the plaintiff simply failed to prove what she desired to prove.

The defendant complains of the introduction in evidence of a letter to him from the pastor of a church, which it is argued tended to create sympathy for the plaintiff and resentment toward the defendant. On cross-examination of the defendant the following occurred:

"Q. How many times were you up to see Miss Cusick? A. I never went to see Miss Cusick.

"Q. You received a letter from Rev. Gentry? A. I did.

"Q. Never answered that letter? A. No, sir; I thought he was a meddler and didn't pay any attention.

"Q. I say, you never answered that letter? A. No, sir."

At this point counsel for the defendant objected, no ground of objection being stated, and the cross-examination closed. The subject of the cross-examination was outside the scope of the direct examination, was wholly immaterial, and the plaintiff was bound by the answers returned. The defendant, however reopened the subject by testifying to facts justifying him in not visiting the plaintiff, because of apprehension of bodily harm. The letter, which was a friendly one, was then admitted, and the defendant was asked if he was afraid of the preacher. The court instructed the jury that the letter could be considered only as bearing on the question whether or not the defendant was afraid to visit the plaintiff. The issue of fear was raised by the defendant. He might have had the cross-examination stricken out, if he had so...