Earhart v. Tretbar

• Citation: 80 P.2d 4,148 Kan. 42
• Decision Date: 11 June 1938
• Docket Number: 33731.
• Parties: EARHART v. TRETBAR. [*]
• Court: Kansas Supreme Court

80 P.2d 4

148 Kan. 42

EARHART v. TRETBAR. ^[*]

No. 33731.

Supreme Court of Kansas

June 11, 1938

Syllabus by the Court.

A minor riding in automobile allegedly driven by his father was required to exercise reasonable care and precaution for his own protection, where he was intelligent and alert and a junior college student.

A minor, who was intelligent and alert and a junior college student, and who was riding in automobile allegedly driven by his father, was guilty of negligence in not seeing approaching automobile which collided at intersection with the automobile in which he was riding, where he had a clear vision of the road on which the other automobile was traveling.

In action for injuries sustained by minor in collision at intersection between defendant's automobile and one allegedly driven by minor's father, evidence sustained finding that direct and proximate cause of collision was negligence of both defendant and minor.

Where plaintiff failed to request that jury be required to make its answer to a special question clear and definite, plaintiff was in no position to complain on appeal.

Court's refusal to permit plaintiff's father to participate as an attorney in the trial of the case if he intended to testify in plaintiff's behalf did not require reversal, where the father was a material witness concerning seriously disputed facts.

In action for injuries sustained in automobile collision at intersection, court did not err in permitting a repairman of 18 or 20 years' experience, who repaired defendant's automobile after collision, to testify that in his judgment the principal damage to defendant's automobile had resulted from impact against its right side.

The Supreme Court could not say that photographs of automobiles taken after automobiles were removed from the scene of accident, were improperly admitted, where testimony of photographer was not abstracted, and record disclosed no objection to admission of the photographs, since, in absence of any showing to contrary, Supreme Court was required to assume that a proper foundation had been laid.

In action for injuries sustained in automobile collision at intersection, court did not abuse its discretion in submitting to jury more than 10 special questions, some of which contained several subdivisions, in absence of any affirmative showing of prejudice. Gen.St.1935, 60-2918.

The record in an action for damages resulting from an automobile collision examined and held: (1) The special findings of the jury were supported by substantial evidence; (2) the special findings were consistent with each other and with the general verdict; (3) if a special finding was evasive, it was the duty of the party dissatisfied therewith to request the trial court to have the jury make such finding clear; (4) in view of the record the judgment cannot be reversed by reason of the refusal of the trial court to permit an attorney to participate in the trial where he was a material witness concerning seriously disputed facts; (5) the admission of the testimony of an automobile repair man was not erroneous; (6) the record discloses no error in the admission of photographs; (7) reversible error is not disclosed by submission to the jury of more than ten special questions.

Appeal from District Court, Stafford County; Ray H. Beals, Judge.

Action by Aubrey V. Earhart, by Vinnie V. Earhart, his next friend against J. G. Tretbar for injuries sustained in an automobile collision. From a judgment in favor of the defendant, the plaintiff appeals.

C. O McGill and B. A. Earhart, both of Hutchinson, for the appellant.

Paul R Nagle and William Davison, both of St. John, and C. K. Cary, of Stafford, for appellee.

WEDELL Justice.

This action was brought to recover damages for injuries sustained in an automobile collision. The plaintiff, Aubrey V. Earhart, a minor, was a junior college student at Hutchinson, and the action was brought in his behalf by his mother and next friend. Defendant prevailed and plaintiff appeals.

The collision occurred in the daytime and in an intersection of unmarked county roads in Stafford county. There were no stop signs. Plaintiff's car was traveling west, and defendant's car was traveling north. The principal acts of negligence with which defendant was charged were unlawful and excessive speed, driving on the wrong side of the road and striking plaintiff's car when it was almost across the intersection. The answer specifically denied these charges and pled contributory negligence in substance as follows: Defendant did not know whether plaintiff was driving the Ford automobile or whether he was merely riding therein; the collision occurred at a wide open intersection, and if plaintiff was the driver and had kept a proper lookout he could have seen defendant's car approaching from the south in time to have stopped his automobile or he could have turned aside and avoided the collision; plaintiff's car approached the intersection at a rate of speed to exceed fifteen miles per hour and struck defendant's car on the right side after it had passed the middle of the intersection; plaintiff and other members of his family were engaged in a joint enterprise; if plaintiff was not the driver of the Ford car and was merely riding therein, the collision was the result of his own negligence in failing to keep a lookout for his own protection and in failing to warn the driver of the approach of defendant's car.

Plaintiff insists the entire verdict is based on hearsay testimony and therefore cannot stand. The contention cannot be sustained. The jury made special findings, which were in harmony with each other and with the general verdict and they compel affirmance irrespective of whether plaintiff was the driver of the car or merely riding therein. The jury found plaintiff was the driver. Plaintiff insists that finding was based on hearsay testimony. The sheriff and undersheriff, witnesses called by the defendant, testified in substance that according to their recollection plaintiff's father informed them at the scene of the accident, that they were certain it was in plaintiff's presence, and that plaintiff was driving the car. On the trial, plaintiff, as well as his father and mother, testified to the effect the father was the driver. On the trial plaintiff did not deny that his father had a conversation with the officers in his presence nor that his father at that time informed the officers that he, the plaintiff, was driving the car.

We need, however, not rest our decision on the ground that plaintiff was the driver of the car. Plaintiff's testimony indicates that he was an intelligent and alert young man. He was a student in the Junior College. Assuming he was only riding in the car, and aside from any question of joint enterprise, he was required to exercise reasonable...