Drake v. Moore
Decision Date | 07 March 1959 |
Docket Number | No. 41231,41231 |
Citation | 184 Kan. 309,336 P.2d 807 |
Parties | Rose Mae DRAKE, Appellee, v. L. W. MOORE and L. W. Moore, Jr., d/b/a L. W. Moore & Son, and Employers Mutual Casualty Company, Appellants. |
Court | Kansas Supreme Court |
Syllabus by the Court
1. In testing the sufficiency of evidence as against a demurrer, the evidence and the inferences that may be properly drawn therefrom must be considered in the light most favorable to the party against whom the demurrer is directed; and if the evidence and the inferences viewed in that manner are of such character that reasonable minds, in the exercise of fair and inpartial judgment, may reach different conclusions thereon, the demurrer should be overruled and the issue submitted to a jury.
2. Contributory negligence is generally an affirmative defense. It is never presumed. It must be established by proof.
3. Ordinarily and in the absence of convincing evidence to the contrary, it will be presumed that a deceased person exercised reasonable care for his own safety.
4. Absent evidence to the contrary, an operator of an automobile on a public highway may assume there are no hidden, undisclosed defects, such as an unlighted truck, standing in the path of travel.
5. Statements made in answer to an inquiry while a person is still under the influence of the act and under such circumstances as to preclude fabrication are admissible under the res gestae exception to the hearsay rule.
6. Under the res gestae rule, the lapse of time after the occurrence of the event is not as important as the condition of the speaker's mind; and if it appears from all the circumstances that the statements are exclamatory rather than explanatory are spontaneous rather than studied, and are in reality the event speaking through the person making the statements, they are admissible.
7. The admissibility of statements as a part of the res gestae is determined by the facts and circumstances of each case, and the admission of such statements should, in a great measure, be left to the discretion of the trial court.
Wayne Coulson, Wichita, argued the cause, and H. Lee Turner, Great Bend, and Homer V. Gooing, Paul R. Kitch, Dale M. Stucky, Donald R. Newkirk, Robert J. Hill, Gerrit H. Wormhoudt, Philip Kassebaum, John E. Rees, Robert T. Cornwell, Willard B. Thompson, and Hugo T. Wedell, Wichita, of counsel, were with him on the briefs for appellants.
Loyd H. Phillips and Tudor W. Hampton, Great Bend, argued the cause, and Robert E. Southern and Jerry M. Ward, Great Bend, were with them on the briefs for appellee.
This was an action to recover damages for the wrongful death of plaintiff's husband. From a verdict and judgment in favor of plaintiff, defendants appeal.
Except as they define the issues, the pleadings are unimportant and require little discussion. All that need be said respecting them is that Rose Mae Drake, plaintiff (appellee), alleged that on September 22, 1955, at approximately 7:15 p. m., her husband, Earl Drake, was driving an automobile west on U. S. highway No. 50 North at an approximate speed of fifty miles an hour; that through their agent, one Mr. Griffith, defendants (appellants) L. W. Moore and L. W. Moore, Jr., d/b/a L. W. Moore & Son, were operating a truck and crude-oil transport semi-trailer in the same direction and on the same highway; that Griffith stopped defendants' truck and trailer in the westbound lane of traffic in such a manner as to obstruct traffic therein; that neither the truck nor the semi-trailer had any taillights or clearance lights burning, nor had flares or reflectors been set out either in front of or behind the truck and trailer, as required by law; that the rear end of the semi-trailer was a dark, drab and dirty color, and stood high enough off the ground as to be above the range of decedent Drake's lights so that he was unable to see the truck or trailer until too close to stop the car in time to avoid the collision; that by reason of the collision, plaintiff's husband received injuries which resulted in his death the following day. Plaintiff alleged the collision and resultant death of her husband were proximately caused by the negligence of defendants' employee in stopping the truck and trailer and leaving them on the main traveled portion of the highway, when it would have been practical to have driven the truck and trailer off the highway prior to stopping thereon; and in failing to have proper lights to the rear of the truck and trailer, as well as clearance lights, lanterns or red reflectors, all as provided by statute.
Defendants' answer denied they were guilty of negligence and alleged plaintiff was barred from recovery on the ground decedent was guilty of contributory negligence in driving at an excessive rate of speed, failing to keep a proper lookout and failing to keep his car under control. Plaintiff replied by way of a general denial.
Plaintiff's evidence in support of the allegations contained in her petition, when viewed in the light most favorable to her as a prevailing party, may be briefly stated: Defendants' employee, Griffith, was operating a crude-oil transport truck and trailer in a westerly direction on U. S. highway No. 50 North on the day in question and was returning to Great Bend after delivering a load of crude oil. When he got about four and one-half miles west of Chase, Kansas, it commenced raining very hard. The side panels on the hood of the truck over the engine had been previously removed so that the motor would not heat. Griffith testified that he had been driving twenty to twenty-five miles an hour when the engine got wet; that Griffith further testified he could have pulled off the highway onto the shoulder of the road before he reached the place where the truck finally stalled, but he did not think the motor was going to quit completely.
The truck stalled on an incline in the westbound lane of traffic, and so remained for a period of twenty to twenty-five minutes prior to the collision. The pavement at the point in question was concrete surface and twenty-two feet wide and on the east slope of a slight hill. The highway had dirt shoulders approximately eight feet wide. The left side of the truck and semi-trailer was approximately two feet from the center line of the highway and thirteen feet from the south edge of the pavement. The rear end of the semi-trailer was a dark, drab and dirty color and the rear bumper stood about thirty to thirty-six inches above the level of the pavement. There were no lights such as clearance lights, taillights, or any lights whatsoever to the rear of the truck and trailer, and there were no reflector lights out at the time of the collision.
As soon as the truck stopped Griffith tried unsuccessfully to start the engine. Two men came along soon after and their attempt to start the truck was also unsuccessful. They left to get help, and in the meantime Griffith directed traffic until one Mr. Branson drove up in his truck and offered help. He arranged to pull the stalled truck in order to start it, but the first attempt was unsuccessful. While making his second attempt to pull the truck, he heard a crash, got out of his truck, and saw plaintiff's husband wandering across the highway in a southerly direction. Decedent was bending over, and he complained that his chest hurt; when he reached the side of the highway he squatted down and held his chest.
Within a minute or two after the accident and between 7:00 and 7:30 p. m., Mr. Tambella, who was driving his car west on the same highway, was flagged down by a man with a flashlight and was asked to take decedent to the hospital, which he did immediately thereafter. Mr. Tambella testified that he saw defendants' truck parked in the westbound lane of traffic and at the rear and partially underneath defendants' trailer the automobile which had been driven by plaintiff's husband. He further testified as follows:
Further testifying, in answer to what he saw as he proceeded farther, he said: 'There was something like an accident, but I couldn't--the only thing I could see ahead was a person waving a flashlight in this motion (indicating), * * *' He also testified that when he was six or seven car-lengths east of the rear of the wrecked vehicles he saw no 'lights or reflectors, taillights or clearance lights.' In answer to the question regarding weather conditions at that time he said, 'It was dark and wet, it was raining at the time.' He also testified that he left the scene of the accident with decedent and arrived at the Ellinwood Hospital 'close to eight o'clock.'
Mr. Doughty, highway patrolman, testified that the truck and trailer were completely on the north half of the paved portion of the highway; that the trailer was painted black with some gray on it and the back of it was mostly black.
Plaintiff, her daughter and Doctor White arrived at the hospital around eight o'clock and found Mr. Drake in pain, vomiting blood, in a state of shock, and receiving oxygen by way of a nasal catheter. In answer to an inquiry as to what had happened, he stated, in substance, that he had hit a truck and there were no lights on it. Doctor White testified that Mr. Drake's statement appeared reliable and that he died the next...
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