Farmer v. Central Mut. Ins. Co. of Chicago, Ill.
| Decision Date | 08 May 1937 |
| Docket Number | 33385. |
| Citation | 67 P.2d 511,145 Kan. 951 |
| Parties | FARMER v. CENTRAL MUT. INS. CO. OF CHICAGO, ILL. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
"Negligence" is conduct which creates undue risk of harm to other.
"Contributory negligence" is conduct which involves undue risk of harm to person who sustains it, and to bar plaintiff from recovery, it must appear that his failure to exercise reasonable care for his own protection was legally contributing cause of his injury.
Failure of plaintiff to exercise reasonable care for his own protection is not "legally contributing cause of injury" barring recovery, unless such conduct was substantial factor in bringing about injury.
Guest riding on turtle back of automobile coupé driven by guest's father, who was injured by negligence of driver of gasoline transport truck in collision with truck would not be barred from recovery by contributory negligence, unless it appeared that there was failure of guest in riding in that position to exercise reasonable care for his own protection and that such conduct was legally contributing cause and substantial factor in bringing about injury.
In action for injuries received by guest riding on turtle back of automobile coupé in collision with gasoline transport truck, question whether guest was guilty of contributory negligence barring recovery held for jury.
Person confronted with sudden danger who decides to make speedy decision between alternative courses of action is not necessarily chargeable with negligence, although he may not have taken wisest course.
Contributory negligence of motorist may not be imputed to guest where danger confronting motorist arises suddenly and without opportunity for guest to give warning or provide for his own safety.
Occupants of automobile are not engaged in "joint enterprise" as respects imputation of negligence of driver to other occupants, unless there is community of interest in object and purposes of undertaking, and equal right to direct and govern driving of automobile and determine point of destination.
Refusal of requested instruction is not error where instruction given by court covers same ground.
Contention that answer to special question was too general held not available on appeal, where no request was made that jury be directed to make more specific answer, and general answer was in harmony with general verdict.
In guest's action for injuries received in collision between automobile and gasoline transport truck, wherein jury returned general verdict for plaintiff, but answered affirmatively special question whether injury was unavoidable accident, request for polling of jury on special issue, held not error.
In guest's action for injuries received in collision between automobile and gasoline transport truck, wherein jury returned general verdict for plaintiff and answered affirmatively special issue whether injury was unavoidable accident, action of court in allowing jury to retire and return corrected answer to special question, after one juror during polling of jury stated that he did not exactly understand question submitting special issue, held not error.
1. Where a person is confronted with sudden danger and must make a speedy decision between alternative courses of action, he is not necessarily chargeable with negligence although he may not have taken the wisest course.
2. The rule that the negligence of a driver of an automobile may be imputed to an invitee or licensee riding on such automobile does not apply where the danger confronting the driver arises suddenly and without an opportunity for the invitee or licensee to give a warning or to provide for his own safety.
3. Parties taking an automobile trip are not engaged in a joint enterprise within the law of negligence unless there is a community of interest in the object and purposes of the undertaking and an equal right to direct and govern the driving of the car, and to determine the point of destination.
4. Where the plaintiff, as an invitee, was riding on the turtle back of the car driven by his father and was injured by the negligence of defendant in a collision with defendant's truck, plaintiff is not barred from recovery, unless it appears that there was a failure on the part of the plaintiff, in riding in that position, to exercise reasonable care for his own protection, and such failure to exercise reasonable care for his own protection was a legally contributing cause and a substantial factor in bringing about his injury.
5. There is no error in the refusal to give a requested instruction, where an instruction given by the court covers the same ground.
6. If the answer to a special question is general in its nature and no request is made that the jury be directed to make a more specific answer, and such general answer is in harmony with the general verdict, it is too late to complain on appeal.
7. On facts stated in the opinion there was no error in the requested polling of the jury, nor in the action of the court in allowing the jury to retire to the jury room and thereafter return a corrected answer to a special question.
Appeal from District Court, Jewell County; William R. Mitchell Judge.
Action by Willard Farmer against the Central Mutual Insurance Company of Chicago, Ill. Judgment for plaintiff, and defendant appeals.
Hugh C. Larimer, of Topeka, for appellant.
A. Teeple and Geo. E. Teeple, both of Mankato, and H. A. Smith, of Superior, Neb., for appellee.
This was an action for damages on account of injuries received in an automobile collision. Judgment was for the plaintiff, and defendant appeals.
The injury to the plaintiff resulted from an automobile accident which occurred about 7:30 o'clock p. m., after dark, on October 18, 1935, on U.S. Highway No. 36, about 5 1/2 miles west of Mankato, Kan. The father of the plaintiff was the owner of a 1924 model Chevrolet coupé, and at the time of the collision the coupé was being driven by plaintiff's father. Mr. Dickson was riding in the seat with plaintiff's father. The plaintiff and his brother were sitting on the turtle back of the coupé with their backs against the front seat and their feet braced against the spare tire. They had their backs to the direction in which the coupé was traveling. There were some suit cases under the lid of the turtle back, and the surface of the turtle back on which the plaintiff and his brother were riding was almost level. The width of the surface of the turtle back was about 3 feet.
The plaintiff's father and the party accompanying him left their homes in Rexford, Kan., on the morning of October 18, 1935. They drove at a speed of 25 miles an hour. Plaintiff with his brother, had ridden sitting on the turtle back the entire trip and had not experienced any difficulty staying there. The lid was firm, and plaintiff testified the speeding up or slowing down of the car did not affect his riding.
The Chevrolet coupé on which plaintiff was riding collided with a gasoline transport truck owned by the Stadler Bros. and which was driven and operated by their employee, Norris Christenson. The width of the oil mat highway at the place of the collision is about 20 feet. The accident occurred just after the coupé on which plaintiff was riding had crossed a bridge. The bridge is 20 5/10 feet wide and 42 feet long. The distance between the rails or guard posts, marking the edge of the fill on each side of the road east of the bridge, is 27 30/100 feet. East of the bridge is a hill, the crest of which is 510 feet from the east end of the bridge. The bridge is 24 6/10 feet lower in elevation than the top of the hill.
At the time of the collision the Chevrolet coupé driven by plaintiff's father was traveling east, and the gasoline transport truck was traveling west. Shortly before driving upon the bridge, plaintiff's father saw the truck coming over the hill. Plaintiff's father testified the truck was then traveling on the south side of the road, and that he speeded up his car in order to get across the bridge before meeting the truck. He thought the bridge was too narrow for him to pass the truck on the bridge and he did not have time to stop his car before crossing the bridge. He was somewhat blinded by the lights of the truck, but could see the side of the bridge and the guard posts east of the bridge. After crossing the bridge, he testified he pulled over to the south side of the road as far as possible--so close to the guardrails that he was afraid his hub caps would catch in the guard posts. His story was that, after crossing the bridge and pulling to the right as far as possible, he then continued in a straight direction until the impact with the truck; that the truck swerved to the right just in front of the coupé. The coupé did not collide with the front end of the truck, because as plaintiff's father driving the coupé testified, the truck turned to the right. In passing, the left rear fender and wheel of the truck came in contact with some part of the coupé upon which plaintiff was riding, causing the coupé to swerve to the left, cross the road, and run into a guard post on the north side of the road.
As a result of the collision the plaintiff was thrown from the coupé and received severe injuries.
At the time of the collision in question, the appellee was accompanying his father on a trip from Rexford, Kan. to eastern Nebraska. They were looking for work and were dividing the expenses of the trip. The plaintiff had no interest in the car. He did not have anything to do with the selection of the road they took, and did not at any time make any suggestions as to where or when stops were to be made.
The defendant insurance company had filed its policy with the state corporation...
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