Ferguson v. Lang

• Decision Date: 09 June 1928
• Docket Number: 28,119
• Citation: 126 Kan. 273,268 P. 117
• Parties: MRS. EMMA FERGUSON, Appellant, v. O. C. LANG, Appellee
• Court: Kansas Supreme Court

268 P. 117

126 Kan. 273

MRS. EMMA FERGUSON, Appellant, v. O. C. LANG, Appellee

No. 28,119

Supreme Court of Kansas

June 9, 1928

Decided January, 1928

Appeal from Reno district court; W. H. LEWIS, judge pro tem.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MOTOR VEHICLES--Injury from Automobile Collision--Contributory Negligence. In an action for damages occasioned by a collision of automobiles, the evidence in plaintiff's behalf set out in the opinion considered, and held to establish plaintiff's contributory negligence and that the demurrer to her evidence was properly sustained.

2. SAME--Injury from Automobile Collision--Duty of Passenger to Observe and Warn of Danger. The rule that even a passenger in an automobile has a duty to exercise due care for her own safety against the possibility of collision with another automobile at an intersection of public crossroads applied, barring a recovery of damages in plaintiff's behalf because of her breach of that duty.

A. L. Oswald and John Fontron, both of Hutchinson, for the appellant.

J. S. Simmons, Alva L. Fenn and Max Wyman, all of Hutchinson, for the appellee.

OPINION

DAWSON, J.

Plaintiff sued defendant for damages sustained in a collision of automobiles on a public highway. A demurrer was sustained to her evidence, and she appeals.

The facts were to this effect: There is a paved road in Reno county which runs north and south. A few miles north of Sylvia this road is intersected at right angles by an east and west road. On April 6, 1927, plaintiff and her husband were journeying northward in a touring automobile on this paved road, en route from Los Angeles, Cal., to their home in Peoria, Ill. Plaintiff's husband was driving, and she rode at his side. As they approached the crossroad at about eighteen or twenty miles an hour, the defendant came from the west driving his car at a speed of about forty miles per hour and struck the Ferguson car, wrecking it, and severely injuring the plaintiff.

Plaintiff's husband testified:

"I saw this [defendant's] car to my left. . . .

"And I figured I had plenty of time to cross this road, as I wasn't going more than eighteen or twenty miles an hour. I hadn't been driving at any excessive speed at any time. And just as I saw I was going to get hit, I couldn't help myself, I just cramped on my wheel and held my car as steady as I could.

Cross-examination:

"Q. Now, you say you were driving about eighteen or twenty miles an hour when you approached the crossing? A. Yes, sir.

"Q. And you saw Mr. Lang to the west, did you? A. Yes, sir; to my left.

"Q. And you figured you could get across before he got there? A. Well, without any bother. . . .

"Q. You didn't change your speed? A. No, sir. . . .

"Q. Did you give any notice to how rapidly he was approaching you? A. I should judge he was running in the neighborhood of forty miles an hour. . . .

"Q. Did your wife call your attention to how fast he was coming? A. She didn't see him. She was looking the opposite way.

"Q. She could have seen him if she had looked? A. If she had been looking that way she could have seen him. . . .

"Q. You knew, of course, there was a crossroad there? A. Yes, sir; and I always watch them.

"Q. At this time you simply made a mistake as to how fast the fellow was coming? A. That is the idea; yes, sir.

"Q. Did your wife usually watch the roads a little and speak to you about them? A. Yes, sir; she usually did, but she was looking to the right instead of to the left.

"Q. You would listen to her suggestions as to what was coming or what wasn't coming? A. I would whenever she spoke to me. I always paid attention to her."

Plaintiff testified in her own behalf as follows:

"That at the time of the accident she was riding in the front seat with her husband; that she wasn't paying a great deal of attention to the way her husband was driving, but that she thought he was driving all right; that she didn't see the Lang car approaching; . . .

Cross-examination:

"Q. Now, you say you didn't see Mr. Lang's car? A. No, sir.

"Q. Which way were you looking at that time? A. Well, I was kind of looking straight ahead of me. . . .

"Q. Did you look to the west or pay any attention to where you were going? A. No, sir; not in particular, I didn't. I was just kind of sighting through--looking straight ahead of me. . . .

"Q. How many roads had you crossed since you left Sylvia, running across the pavement? A. I couldn't tell you that.

"Q. Had you crossed any? As a matter of fact, you hadn't paid any attention to the crossroads, had you? A. I couldn't tell you. I didn't pay any attention to the crossroads. . . .

"Q. But as a general thing you didn't pay any attention to the crossroads? A. Well, not unless I saw rigs coming; and I would say 'Don't drive over there; let them go ahead first.' . . .

"Q. But you didn't see this one? A. No, sir.

"Q. That means, of course, that you didn't look? A. No, sir; I couldn't say that I was looking--thinking about any rig coming on the road."

By the arguments of counsel it would appear that plaintiff was nonsuited in the trial court because of her own negligence and that of her husband, and that she and her husband were engaged in a joint enterprise.

From the testimony quoted above it is obvious that the plaintiff's husband was guilty of negligence. Although he saw the defendant racing towards the crossing at forty miles per hour, he drove ahead at eighteen or twenty miles per hour, on the miscalculation that he could effect a crossing ahead of the speed fiend. This was a plain breach of the statute which provides:

"Upon approaching a railroad crossing or intersection of highways outside of any village or city, or turning corners, the person operating a motor vehicle shall reduce the speed of such vehicle to a rate not exceeding eight miles an hour, and shall not exceed such speed until entirely past such crossing or intersection." (R. S. 8-122, as amended by Laws 1925, ch. 84.)

Passing for the moment the question whether plaintiff and her husband were engaged in a joint enterprise so that his negligent driving might likewise be attributed to her, we are confronted with the question whether plaintiff herself was negligent. By the testimony of plaintiff and her husband, she could have seen the defendant racing towards the intersection at breakneck speed, but she ignored that road crossing. She looked ahead, and to the right, not to the left. She gave no word of caution to her husband to slow down to the speed prescribed by the statute. If she had done so, her husband would have responded to her suggestion. He...