Engle v. Bowen

• Decision Date: 08 January 1927
• Docket Number: 26,959
• Citation: 251 P. 1108,122 Kan. 283
• Parties: MILDRED ENGLE, Appellee, v. G. A. BOWEN et al., Appellants
• Court: Kansas Supreme Court

251 P. 1108

122 Kan. 283

MILDRED ENGLE, Appellee, v. G. A. BOWEN et al., Appellants

No. 26,959

Supreme Court of Kansas

January 8, 1927

Decided January, 1927.

Appeal from Sedgwick district court, division No. 3; GROVER PIERPONT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

MOTOR VEHICLES--Liability for Injury--Negligence--Last Clear Chance--"Unavoidable Accident"--Excessive Verdict--Examination of Juror. In an action for damages for personal injuries sustained by plaintiff when struck by an automobile driven by defendants' servant, the record is examined and it is held: (1) It was not error to give an instruction embodying the doctrine of the last clear chance (2) the term "unavoidable accident" was sufficiently defined; (3) questions asked, by plaintiff's counsel, on the jurors voir dire, were not seriously objectionable; and (4) the verdict is not excessive.

Fred B. Stanley, Vincent F. Hiebsch, J. B. Patterson, P. K. Smith and D. O. Potts, all of Wichita, for the appellants.

T. A. Noftzger, George W. Cox, W. J. Masemore and R. L. Ne Smith, all of Wichita, for the appellee.

OPINION

HARVEY, J.:

This is an action for damages for personal injuries which resulted from plaintiff's being struck by an automobile driven by a servant of the defendants. It was tried to a jury, there was a verdict and judgment for plaintiff upon two counts, one being for the personal injuries sustained and the other for expenses paid or incurred by reason thereof. The defendants have appealed.

Briefly the facts disclosed by the record are substantially as follows: The plaintiff, a young woman twenty-two years of age, was a student nurse in the Wesley Hospital at Wichita. About 5:30 o'clock in the afternoon of June 28, 1924, on her way home she was walking east along the north side of Second street and across the intersection of North Chautauqua avenue. As she started to cross the intersection she looked to see if any automobiles were close and saw none. She did not look back of her along Second street to see if there were cars, except to see if there were any close. She had proceeded across North Chautauqua avenue until within a foot or two of the curbing on the east side, perhaps was just stepping up on the curbing, when she was struck by the automobile of defendants and seriously injured. Defendants' automobile was being driven by Elsie Schultz in the employ of defendants as a maid, and on an errand for defendants. In the car with her were her sister, the two Bowen children, Bobbie, nine years of age, and a baby, and Janet Murdock, a neighbor girl, eleven years of age. There is a conflict in the testimony as to the speed at which defendants' car was being driven east along Second street and as it turned north into Chautauqua avenue, the testimony of plaintiff's witnesses tending to show that it was being driven at about twenty-five miles per hour, while that of defendants' witnesses tended to show that the speed was about twelve miles per hour. As Elsie Schultz was driving defendants' car east on Second street and approaching the intersection of North Chautauqua avenue there was a Ford roadster in which three young men were riding ahead of her going east along Second street. About the time the cars reached the intersection of North Chautauqua avenue Elsie Schultz attempted to drive past the Ford roadster. As she entered the street intersection her car was a little to the left of and the front portion of it almost even with, the rear part of the Ford roadster. Just after it passed the middle of the intersection the Ford started to turn to the left north into Chautauqua avenue. To avoid hitting the Ford car Elsie Schultz turned sharply north into Chautauqua avenue. The driver of the Ford after starting to turn, seeing defendants' car so close, turned back to the right in Second street and stopped in a short distance. As Elsie Schultz turned north into Chautauqua avenue, seeing that she was about to strike the plaintiff, and when her car was about ten feet from plaintiff, she let go of the steering wheel, threw up her hands and screamed. While most of the evidence is that the plaintiff did not do anything at that time which indicated that she saw defendants' car approaching her, there is testimony tending to show that plaintiff did see defendants' car just before she was struck, and either stopped or took a step backwards. The right front fender or wheel of defendants' car struck plaintiff's left foot, ankle and leg below the knee, dragging her between the car and the curb several feet, and seriously injured her. Defendants' car struck the east curb of Chautauqua avenue about ten feet north of the sidewalk on the north...