Durkin v. Kansas City Public Service Co.

• Decision Date: 09 December 1933
• Docket Number: 31314.
• Citation: 138 Kan. 558,27 P.2d 259
• Parties: DURKIN v. KANSAS CITY PUBLIC SERVICE CO. et al. [*]
• Court: Kansas Supreme Court

27 P.2d 259

138 Kan. 558

DURKIN v. KANSAS CITY PUBLIC SERVICE CO. et al. ^[*]

No. 31314.

Supreme Court of Kansas

December 9, 1933

Syllabus by the Court.

Contributory negligence of pedestrian stepping into observable hole in paving next to street car tracks held for jury, where street was busy one and evidence did not disclose pedestrian's knowledge of hole.

Where all but one of several separable and distinct issues were properly determined to trial court's satisfaction, court could limit new trial to issue not properly determined (Rev St. 1923, 60--3004).

Application to vacate judgment and grant new trial is addressed to trial court's discretion, which will not be reversed, unless abuse thereof is apparent.

Order granting new trial will not be reversed, where trial court is not satisfied with verdict.

1. In an action by a pedestrian against a street railway company to recover for personal injuries occasioned by stepping in a hole in the paving next to the street car tracks, which hole might easily have been seen by the pedestrian had she looked at it, where the evidence shows no knowledge of the hole on the part of plaintiff and the street is a busy one, the question of whether the plaintiff is guilty of contributory negligence is for the jury, and cannot be determined as a matter of law.

2. The allowance or denial of a motion to set aside a judgment and to grant a new trial is a matter resting in the sound discretion of the trial court, whose action thereon will not be reversed unless an abuse of such discretion is apparent.

3. An order of the trial court granting a new trial will not be reversed where the trial court is not satisfied with the verdict.

4. Where several separable and distinct issues are presented all but one of which are properly determined to the satisfaction of the trial court, under R. S. 60--3004 the court may order a new trial as to that issue not properly determined, and deny it as to the remaining issues.

Appeal from District Court, Wyandotte County, Division No. 3; William H. McCamish, Judge.

Action by Maggie Durkin against the Kansas City Public Service Company and another. From an adverse judgment, defendants appeal.

Contributory negligence of pedestrian stepping into observable hole in paving next to street car tracks held for jury, where street was busy one and evidence did not disclose pedestrian's knowledge of hole.

Fred Robertson, Edw. M. Boddington, and J. O. Emerson, all of Kansas City, Kan., and Charles L. Carr, of Kansas City, Mo for appellants.

Arthur J. Stanley and Arthur J. Stanley, Jr., both of Kansas City Kan., and Bart M. Lockwood, of St. Joseph, Mo., for appellee.

THIELE Justice.

This was an action for damages.

The petition alleged, and the evidence, to which the jury gave credence, showed, that defendant the Wyandotte Railways Company owned, and defendant Kansas City Public Service Company operated, a double track of street railway on Kansas avenue in Kansas City, Kan.; that plaintiff, a woman about 50 years of age, lived on the north side of Kansas avenue in the 300 block; that on November 10, 1930, about 3:30 p. m., she started to cross Kansas avenue toward the east end of the block. She had passed between automobiles parked along the north curb line and southward until she got between the rails of the south track. She stopped to observe the traffic, and saw an automobile approaching from the west and distant about 20 to 25 feet, traveling from 20 to 25 miles per hour, and about one and one-half feet south of the south rail. A street car was also approaching from the west and 60 to 100 feet away. About the time the automobile was opposite her, plaintiff started to take a step forward, her foot went into a hole in the pavement just north of the south rail, and she fell forward. As she fell, she felt a sharp pain in her ankle, something popped, and her head hit. She was unconscious until the next day. Her injuries consisted of a fractured right arm, right leg, and right ankle, lacerations of her head and face, and a concussion of the brain. At the time of the trial, the broken bones were healed, except that the union of the leg bones was not good and she was compelled to use a crutch. The use of the arm has been affected, and she could not raise it above a level position. It is not intended by the above to give the evidence fully but only sufficiently to present matters concerning which complaint is made. Defendants' answer was a general denial and a plea of contributory negligence. The jury returned a verdict in favor of plaintiff for $9,000 against both defendants, and answered special questions as follows:

"1. Q. Did the plaintiff's right foot become fastened in any hole next to the south rail of the eastbound street car tracks? A. Yes.

"2. Q. If you find the plaintiff's foot became fastened in a hole next to the south rail, then state whether the plaintiff, before stepping into the hole, stopped between the rails of the eastbound track and looked down at the place where the hole was? A. Yes.

"3. Q. If you find the plaintiff's foot became fastened in a hole next to the south rail, then state whether the hole in which the plaintiff's foot became fastened was so large and easily seen that any person of ordinary prudence, looking at the place where the hole was, could have seen it? A. Yes.

"4. Q. If you find that the plaintiff's foot became fastened in a hole next to the south rail, then state the size of the hole, giving length, breadth and depth? A. Length 6 inches; breadth 5 inches; depth 6 inches.

"5. Q. What part of the automobile did the plaintiff collide with? A. Left rear door anl left rear fender.

"6. Q. If the plaintiff had exercised ordinary care when she crossed the street in observing the approaching automobile, and in observing the condition of the street ahead of her, could she not thereby have avoided her injuries? A. No.

"7. Q. If you find for the plaintiff, then state specifically what negligence, if any, the defendants were guilty of? A. Guilty of negligence in not keeping paving between rails in proper repair.

"8. Q. Did the plaintiff stop on or near the south rail of the eastbound tracks? A. Yes.

"9. Q. If you find the plaintiff stopped on or near the south rail of the eastbound tracks, then state how far west of her the automobile was with which she collided and at what speed it was traveling? A. Twenty to twenty-five feet. Twenty to twenty-five miles per hour.

"10. Q. If you find the plaintiff stopped at or near the south rail of the eastbound tracks, then state whether she would have been injured if she had remained standing for a sufficient time to let the automobile of Mrs. Swindell get by? A. Yes."

Defendants filed their motions for judgment on the findings of the jury, to set aside certain findings, and for a new trial, and plaintiff asked the court to set aside the answer to special question No. 2.

The court denied the motion of defendants for judgment on the findings, set aside the answer to special question 10 as not sustained by the evidence, and otherwise denied the motion to set aside the findings. The motion for a new trial was allowed in part and denied in part, the journal entry reciting: "The court holds that the amount of damages found by the jury is not sustained by the evidence and is excessive and that a new trial should be granted as to amount of damages only, and overruled as to the residue of such motion, ***" and an order was made accordingly.

The defendants appeal, and contend that under the facts testified to by plaintiff and on her behalf, and on the answers to the special questions, they are entitled to judgment in their favor as a matter of law, that the verdict was so excessive as to indicate passion and prejudice, and a new trial as to all issues should have been allowed, and that the court erred in its instructions. The plaintiff appeals, assigning as error the allowance in part of the motion for a new trial and the setting aside the answer to special question No. 10.

The contentions...