Elliott v. Aldridge

• Decision Date: 05 July 1930
• Docket Number: 29,107
• Citation: 289 P. 401,131 Kan. 29
• Parties: J. A. ELLIOTT, Appellant, v. R. G. ALDRIDGE et al., Appellees
• Court: Kansas Supreme Court

289 P. 401

131 Kan. 29

J. A. ELLIOTT, Appellant, v. R. G. ALDRIDGE et al., Appellees

No. 29,107

Supreme Court of Kansas

July 5, 1930

Decided July, 1930.

Appeal from Butler district court; GEORGE J. BENSON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

HIGHWAYS--Injury from Defect--Instructions--Special Questions--Contributory Negligence. The proceedings considered in an automobile accident case, and held, assignments of error relating to instructions given and refused, the submission of special questions to the jury and the soundness of special findings by the jury are without substantial merit.

Burt Comer and Harold H. Malone, both of Wichita, for the appellant.

W. A. Ayres, Austin M. Cowan, C. A. McCorkle, J. D. Fair, W. A. Kahrs, all of Wichita, and W. N. Calkins, of El Dorado, for the appellees.

OPINION

BURCH, J.:

The action was one for damages for injuries to person and property occasioned by negligence of defendants. The verdict and judgment were for defendants, and plaintiff appeals.

The cause of action arose out of the automobile accident considered in the case of Billings v. Aldridge, 129 Kan. 772, 284 P. 404. In that case Billings was a passenger. In this case plaintiff was the driver of the automobile and responsible for the manner in which it was operated. While the testimony in this case differed in some respects from the testimony in the Billings case, the essential features were the same, and the general description, in the opinion in the Billings case, of the place of accident and manner in which it occurred need not be repeated here.

Plaintiff complains because requested instructions were not given. Two of them related to the subject of wantonness. The court sufficiently instructed the jury on that subject, and the jury properly found defendants not guilty of wantonness. The accident occurred in the nighttime, and plaintiff's requested instruction relating to privilege to drive at forty miles per hour, on the assumption the road was in reasonably safe condition, was properly refused because it left out of account the subject of regulating speed according to ability to see. Besides that, in view of the special findings of the jury, it is not now important what plaintiff might have assumed respecting condition of the road.

Plaintiff complains of instructions which the court gave. Contributory negligence was not overemphasized. If it be conceded there was no occasion for the instruction relating to remote and intervening cause, plaintiff does not indicate that the instruction harmed him. There was testimony that, with wheels locked by four-wheel brakes, the automobile skidded approximately ninety-six feet before it went into the ditch. In view of this testimony, and testimony relating to the wrecked condition of the automobile, it was proper for the court to instruct the jury on the subject of regulating speed according to ability to see. Some minor criticisms of the instructions need not be discussed.

Plaintiff complains of instructions defining the duties of defendants. The instructions were correct, but they are no longer material, because the jury found specifically that plaintiff was guilty of contributory negligence.

The court gave the instructions considered in the Billings case relating to speed at intersections, and submitted to the jury special questions in which speed when crossing the intersection was referred to. Plaintiff contends the instruction and the special questions confused the jury and the decision in the Billings case should be applied....