Deselms v. Combs
| Decision Date | 09 November 1946 |
| Docket Number | 36577. |
| Citation | 174 P.2d 107,162 Kan. 15 |
| Parties | DESELMS v. COMBS. |
| Court | Kansas Supreme Court |
Appeal from District Court, Sedgwick County, Division No. 1; Ross McCormick, Judge.
Action by William J. Deselms against J. A. Combs for damages allegedly sustained in automobile accident. From a judgment for the defendant, the plaintiff appeals.
Reversed with directions.
Syllabus by the Court.
In an action to recover damages alleged to have been sustained when an automobile being driven by the plaintiff collided with a truck being driven by an agent of defendant at a street intersection, the record is examined and it is held that plaintiff was not guilty of contributory negligence so as to bar his recovery as a matter of law.
Robert R. Hasty, of Wichita, for appellant.
I. H Stearns and E. P. Villepigue, both of Wichita, for appellee.
This is an action for damages alleged to have been incurred when a truck driven by defendant's agent collided with an automobile being driven by plaintiff at a street intersection. Judgment was for defendant, sustaining his demurrer to plaintiff's evidence on the ground that it showed plaintiff to be guilty of contributory negligence as a matter of law. Plaintiff has appealed.
Plaintiff was the only witness as to the facts and circumstances surrounding the collision. He was driving south on Emporia street on December 4, 1944, at 1 o'clock in the afternoon. He was traveling about nine or ten miles per hour. Defendant's truck was traveling east on Third street in the center of the street moving between twenty-five and forty miles an hour. The two vehicles collided at the intersection. The front fender of defendant's truck hit plaintiff's car in the middle of the right side. The above is substantially all the testimony of plaintiff on direct examination. On cross-examination he testified that he looked west as he approached Third street and that he did not enter the intersection until he had looked west; that when he first saw defendant's truck approaching he was twenty-five feet from the intersection and defendant's truck was about in the middle of the block going about twenty-five miles per hour; that he kept watching defendant's truck and it never did slacken its speed and when plaintiff saw that the truck was going to hit him, he, that is, the plaintiff, slackened his speed. While no witness testified to it, we should note here that all parties agree that the city blocks in Wichita are 300 feet long, so the testimony that the truck was in the middle of the block when plaintiff first saw it would put it about 150 feet from the intersection. On further cross-examination plaintiff testified that he did not stop his car because he hardly knew what to do but that he slowed up and tried to avoid the collision. He then testified in answer to a question by counsel for defendant that if he had speeded up he would have missed the truck but that he figured the driver of the truck would slow up so he could get across. He further testified, as follows:
On redirect examination he testified that his car entered the intersection first and the truck was about two lengths of a car back; that the driver of the truck tended to confuse him and he had only about one second to act. On recross examination he testified that he could have jammed on his brakes just before he entered the intersection and avoided the collision. On redirect examination plaintiff testified that if the driver of the truck had slowed up plaintiff would not have been hit; that when the driver of the truck saw he was going to hit plaintiff he turned a little to the right or south.
To this undisputed evidence the court sustained a demurrer on the ground that it showed plaintiff to be guilty of contributory negligence as a matter of law.
At the outset it should be stated that in consideration of a demurrer to the plaintiff's evidence we not only take the evidence of plaintiff as true but also draw all inferences and conclusions from the surrounding facts and circumstances favorable to the plaintiff. See James v. Grigsby, 114 Kan. 627, 220 P. 267. Where a reasonable conclusion from the established facts and circumstances may be drawn favorable to plaintiff's case, the demurrer should be overruled notwithstanding that a reasonable conclusion might be drawn in favor of the defendant. Where reasonable minds might differ as to the conclusion or inference to be drawn from the surrounding facts and circumstances the conclusion or inference favorable to plaintiff should be drawn on consideration of a demurrer to the evidence. In order for the evidence of plaintiff to be demurrable the only reasonable conclusion to be drawn from it must be in favor of the defendant. See Towell v. Staley, 161 Kan. 127, 166 P.2d 699.
Defendant concedes this to be the rule but argues that the testimony of plaintiff brought the case within the rule laid down by us in Ray v. Allen, 159 Kan. 167, 152 P.2d 851, 852. That was a case of a collision of two cars at an intersection. The trial court sustained defendants' demurrer to plaintiff's evidence and the plaintiff appealed. We summed up the plaintiff's evidence, as follows:
'He testified he was driving south on the street and as he approached the intersection where the collision occurred he slowed down to twelve or fifteen miles per hour and looked both ways and saw defendants' truck coming from the west about 150 feet away. He stated he could have stopped his automobile at that time in five feet. He continued on and the truck struck his right side. He further testified when he first saw the defendants' truck he didn't judge its speed nor make any effort to do so, and he had no idea of its speed until immediately prior to the collision; that 'I could have stopped but why should I stop when the right-of-way was mine'; that if he had observed the speed of the truck he could have stopped before he entered the intersection. He testified that the truck was traveling about forty-five miles an hour when it struck him.'
We examined that evidence and held that the facts were not such that the minds of reasonable men might differ as to whether plaintiff was guilty of contributory negligence and that the demurrer was properly sustained.
Defendant argues that in the case at bar as in Ray v. Allen, supra, the plaintiff failed to keep a proper lookout and to govern his action by what he must have seen but when he reached the edge of the intersection proceeded across without regard for his own safety.
We have concluded that this record is distinguishable from that one. In the first place, the plaintiff in that case testified 'I could have stopped but why should I stop when the right-of-way was mine.' In this case the plaintiff testified 'I seen there was an accident going to happen and I didn't know what to do.' In another place he testified that he did not try to beat defendant across the intersection but that he figured he had the right of way and time to go across. The reasonable conclusion to be drawn from the...
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