Erwin's Estate, In re

• Decision Date: 10 March 1951
• Docket Number: No. 38186,38186
• Citation: 228 P.2d 739,170 Kan. 728
• Parties: In re ERWIN'S ESTATE. RICHARDSON v. ERWIN.
• Court: Kansas Supreme Court

Page 739

228 P.2d 739

170 Kan. 728

In re ERWIN'S ESTATE RICHARDSON v. ERWIN.

No. 38186.

Supreme Court of Kansas.

March 10, 1951.

Rehearing Denied April 12, 1951.

Syllabus by the Court

1. The jury is not authorized arbitrarily or from partiality or caprice to disregard uncontradicted and unimpeached testimony, nor to disregard the only evidence upon a material question in controversy and return a verdict in direct opposition, but such testimony tending to establish the claim of the party having the burden of proof is not sufficient to reverse the finding of the jury unless it covers and reaches all necessary points to complete the showing of his right to recover.

2. The record examined in an action to recover damages for alleged negligence, and held, that a contention that certain testimony was uncontradicted is not sound.

3. Instructions to the jury and special questions submitted to it should be germane to the definite issues made by the pleadings and limited to such of them as are supported by some evidence.

4. The record examined further, and held, that the trial court did not err in its instructions to the jury.

5. A complaint examined that the trial court erred in submitting a special question to the jury, and held, to be without merit.

6. Consistent answers to special questions submitted control the general verdict, but when they are inconsistent one with the other, some showing a right to a verdict and some showing the contrary, a new trial should be granted.

7. A general verdict imports a finding upon all of the issues in the case not inconsistent with the answers to the special questions and nothing will be presumed in favor of such answers which will be given such a construction, if possible, as will bring them into harmony with the general verdict.

8. While nothing will be presumed in favor of answers to special questions as against the general verdict, they may be viewed and interpreted in the light of the testimony.

9. In considering the answers to special questions it is the duty of the court to harmonize them where it is reasonably possible to do so. The court is not permitted to isolate one answer and ignore others but is required to consider them all together, and if one interpretation leads to inconsistency and another to harmony, to adopt the latter.

10. The record examined further, and held, that the answers to special questions submitted are consistent with each other and with the general verdict.

11. Where matters which tend to discredit him have been drawn from a witness on cross-examination, it is proper to permit him to explain such matters to rebut their discrediting effect.

12. The record examined further, and held, that the trial court did not err in its rulings on the admission of testimony, on its ruling on a motion for a new trial, nor on its rendition of judgment.

A. L. Foster, of Parsons, and Pete Farabi, of Pittsburg, argued the cause, and Sylvan Bruner, Morris Matuska and Don Musser, all of Pittsburg, were with them on the briefs, for appellant.

Elmer W. Columbia, of Parsons, argued the cause, and John B. Markham and Herman W. Smith, Jr., both of Parsons, were with him on the briefs, for appellee.

THIELE, Justice.

This was a proceeding originally commenced in the probate court, under which the petitioner sought to establish a demand against a decedent's estate. The proceeding was certified to the district court and the trial there resulted in a judgment against the petitioner, who has appealed to this court.

In a preliminary way it may be stated that on January 25, 1948, one Noel Erwin, traveling alone, was driving a Studebaker truck north along a highway in Labette County; at the same time Leon Richardson was driving south along the same highway in a Plymouth coach accompanied by Lester Blevins, Roy Lee Blevins and Wayne McCabe. The two vehicles collided and the two drivers and the passengers other than Lester Blevins were killed. As the result of proceedings in the probate court Orda Erwin was appointed as administrator of the estate of Noel Erwin and Effie F. Richardson was appointed as the administratrix of the estate of Roy Lee Blevins who was her son.

Under date of December 24, 1948, Effie F. Richardson, administratrix of the estate of Roy Lee Blevins, filed her petition for allowance of a demand against the estate of Noel Erwin which, for our purposes, alleged the happening of the collision and the death of Roy Lee Blevins and charged Noel Erwin with being negligent in seven particulars, which we summarize as follows: (1) In driving the Studebaker truck to the left of the center of the highway and on the wrong side thereof and against the automobile in which Roy Lee Blevins was riding; (2) in driving at a high, dangerous and excessive rate of speed; (3) in failing to keep a careful and reasonable lookout for vehicles upon the highway; (4) in failing to turn aside and thus avoid the collision; (5) in failing to stop and thus avoid the collision; (6) in failing to slow down and thus avoid the collision; and (7) in failing to keep his truck under control and thus avoid the collision. Allegations as to the extent of damage need not be set forth. In due time Orda Erwin, administrator of the estate of Noel Erwin, filed his answer denying generally and alleging that if the death of Roy Lee Blevins resulted from the collision (1) that the sole and proximate cause of the collision and death was the negligence of Leon Richardson, the driver of the car in which Roy Lee Blevins was riding; (2) that Roy Lee Blevins was guilty of negligence in failing to take proper steps and precautions for his own safety and to protect himself; and (3) that the collision and death was the result of an accident and not by reason of any fault or negligence of Noel Erwin. Petitioner's reply was a denial of matter inconsistent with her petition.

The proceeding, under the issues thus formed, was certified to the district court for trial. The trial was by a jury which returned a general verdict in favor of the Erwin estate and against the petitioner, and answered special questions submitted as follows:

'1. Do you find that the collision was the result of an accident, as defined by the Court's instructions?

'Answer: Yes.

'2. Whereabouts in the road were the left front wheels of each vehicle when the collision occurred?

'Answer: In the center track.

'3. At what rate of speed was the Studebaker truck driven by Noel Erwin traveling at the time of the collision?

'Answer: 36 mi per hr.

'4. At what rate of speed was the Richardson Plymouth car traveling at the time of the collision?

'Answer: 46 mi per hr.

'5. Do you find Noel Erwin guilty of negligence?

'Answer: No.

'A. If you answer the foregoing question in the affirmative, please state what act of negligence you find Noel Erwin, deceased, guilty of.

'Answer: ___'

The petitioner's motions to set aside the above answers and for a new trial were denied, and appeal to this court followed, the petitioner's specification of errors covering the matters hereafter discussed.

Appellant's cententions require a summary of the evidence, and of other events occurring during and after the trial.

Each of the motor vehicles was approximately six feet wide. The highway had been resurfaced recently with white chat or stone and had a ridge of that material along its east side. The highway was very dusty. At the place where the collision occurred the distance from the west side of the road to the row of material on the east was seventeen feet. The highway had three well defined tracks in the chat, one down the center and two about a car's width apart to either side. Lester Blevins, the surviving passenger, stated that he and his companions in the Plymouth had been skating and after taking one of the skating party to her home they went west along a road until they reached an intersection about 500 feet north of the scene of the collision and stopped. He saw a vehicle coming from the south about one-half mile away; it was kicking up dust. The Plymouth turned south and when it was about 500 feet south of the intersection the approaching vehicle passed the Plymouth at a speed of about sixty miles an hour, stirring up the dust so that he could not see anything; that the dust blinded 'us'; 'about a split second after this car passed as we collided' with the Erwin truck. He stated that at that time the Plymouth car was on the right hand side of the road and was about a foot from the west shoulder and was traveling about twenty-five or thirty miles per hour. The next thing he knew he was in the hospital. He further testified he had filed a claim against the Erwin estate and had also filed a suit against Erwin's father. However, other witnesses who had no interest in the outcome of the proceeding testified they saw the Erwin truck some distance to the south of the collision proceeding north at a speed of about twenty to twenty-five miles an hour and that it was passed by another truck. One witness, and as far as the record shows, the last person to see the Erwin truck prior to the collision, stated she saw it a mile south and that it went down the road on its own right side at a speed of about twenty miles per hour and that when she last saw the truck it was about one-half mile south of the point of collision. It was also shown there was no wind and that a cloud of dust hung over the road. There was also testimony of other persons who were driving north on the highway and who, when some distance north of the collision and shortly before it occurred, passed a Plymouth car of a description similar to the one involved in the collision and in which four or five boys were riding and that the car was proceeding south at a high rate of speed and that their own driver pulled to the side of the road and almost stopped as the Plymouth car was weaving slightly. Another witness who lived on the east and west road and about one-half mile east of the...