Fisher v. Central Surety & Insurance Corporation

• Citation: 149 Kan. 38,86 P.2d 583
• Decision Date: 28 January 1939
• Docket Number: 33959.
• Parties: FISHER v. CENTRAL SURETY & INS. CORPORATION et al. [*]
• Court: United States State Supreme Court of Kansas

86 P.2d 583

149 Kan. 38

FISHER v. CENTRAL SURETY & INS. CORPORATION et al. ^[*]

No. 33959.

Supreme Court of Kansas

January 28, 1939

Syllabus by the Court.

In action by motorist for injury sustained when his automobile struck rear end of truck which had come out of side road onto highway, and the trailer of which was still blocking left side of highway, whether motorist was guilty of contributory negligence was for jury.

Where facts relating to contributory negligence are of such a character that reasonable minds might reach different conclusions thereon, it is question for jury whether there was contributory negligence.

In action by motorist for injuries sustained when his automobile struck the rear end of a truck, court properly submitted to jury question whether motorist violated statute relating to speed of a vehicle on a highway, where motorist's testimony, if believed, showed that he had not violated the statute. Laws 1937, c. 283, § 52.

Instructions given by trial court, and not objected to, become the "law of the case."

A general verdict resolves all issues of fact, which are supported by evidence, in favor of prevailing party.

Where defendants made no request that jury's findings as to negligence of one of the defendants be made more definite objection that jury's finding, as to negligence, was a mere conclusion and indefinite, was not available.

A verdict of $6,474.50 for severe injuries sustained by motorist, damage to automobile, medical and hospital expense loss of time from work, etc., was not excessive.

Where petition in personal injury action was not attacked by demurrer because liability policy was not attached, no motion was made to make petition more definite, and unverified answer of insurer specifically admitted that it did "issue" the policy, execution and issuance of policy was admitted, and court would look to pleadings and statute for the policy. Gen.St.1935, 60-729, 66-1,128 66-1305, subd. D.

Ordinarily by "issue" of an insurance policy is meant its delivery and acceptance whereby it comes into full force and effect as a binding obligation.

A question as to misjoinder of causes of action of parties cannot be raised by demurrer to the evidence.

Questions not fairly raised and not clearly presented to the trial court will not be reviewed on appeal.

1. The rule is absolute that questions not fairly raised and clearly presented to the trial court will not be reviewed on appeal.

2. A question as to misjoinder of causes of action or of parties cannot be raised by a demurrer to the evidence.

3. A general verdict resolves all issues of fact, supported by evidence, in favor of the prevailing party.

4. Instructions given by the court and not objected to, become the law of the case.

5. Where the facts relating to contributory negligence are of such a character that reasonable minds might reach different conclusions thereon, it is a question of fact for the jury to determine.

6. An objection that a special finding of the jury was a mere conclusion and indefinite is not available as error where no request was made that the jury be required to make the finding more definite and responsive.

7. In an action for damages resulting from an automobile collision the record examined, and held the verdict returned by the jury was not excessive and was not the result of passion and prejudice.

Appeal from District Court, Sedgwick County, Division No. 4; Isaac N. Williams, Judge.

Action by H. A. Fisher against the Central Surety & Insurance Corporation and Charles Van Donge to recover damages resulting from an automobile collision. From a judgment in favor of the plaintiff, the defendants appeal.

Judgment affirmed.

Austin M. Cowan, C. A. McCorkle, W. A. Kahrs, Robert H. Nelson, and Henry L. Butler, all of Wichita, for appellants.

C. H. Brooks, Howard T. Fleeson, Fred W. Aley, Carl G. Tebbe, Wayne Coulson, and Paul R. Kitch, all of Wichita, for appellee.

ALLEN Justice.

This was an action to recover damages resulting from an automobile collision which occurred July 13, 1937, near the intersection of U.S. Highway 81 and a country road about one mile south of the city of Newton. Plaintiff prevailed and defendants appeal.

U. S. Highway 81 at the place of the collision runs north and south; the country road runs east and west. Highway 81 at the time of the collision was a two-lane paved highway eighteen feet wide; the country road was thirty to thirty-five feet wide from shoulder to shoulder. There were state highway stop signs on the country road located about fifteen feet back from the arterial highway.

The intersection in question had several filling stations located on both sides of Highway 81. A cafe was located on the southwest corner; south of the cafe was the Donaldson filling station, and south of the Donaldson station was the Cities Service filling station. From the evidence it is clear that the intersection was a much used, heavily traveled part of the highway and well lighted by lights from the filling stations. Trucks parked on both the east and west sides south of the country road. On the northeast corner of the intersection was a filling station known as the Phillips or Heckerdon station. The pumps of this station were set back about fifteen feet from the slab on Highway 81,--the south pump being about fifteen feet north of the country road. The collision occurred near this filling station.

The defendant Van Donge was operating a transport truck owned by Ray Ogier of McCook, Nebraska. It was a Diamond T three and a half ton truck; was 31 feet 9 inches from the front bumper to the back end of the tank; was seven feet wide and the entire equipment weighed 18 tons. Prior to the accident Van Donge had been proceeding north on Highway 81 and had pulled his truck off the highway on the west side and parked it in front of the Donaldson care. There were two rows of trucks parked between Van Donge's truck and the highway. Upon leaving the cafe Van Donge entered his truck, drove north to the county road running east and west, then turned east toward Highway 81. On entering the highway he turned north. At the time of the accident the trailer had not completely straightened out on the highway.

The plaintiff had a contract carrying newspapers from Wichita to Salina and had a regular schedule that he made each night. On the night of the accident plaintiff left Wichita at 12:37 o'clock A. M. and drove between Wichita and Newton at an average speed of 50 to 55 miles per hour, arriving at the intersection at about 1:20 o'clock A. M.

Plaintiff testified that when he reached a point four or five hundred feet south of the intersection he removed his foot from the accelerator, threw out his clutch, and coasted up to the intersection, intending to turn on to a road running northwest into Newton, which joins Highway 81 about 200 feet north of the intersection. When he reached a point 150 or 200 feet south of the intersection he saw Van Donge's truck for the first time. It was moving east on the country road. Plaintiff stated he could not see defendant's truck until it was from 1 to 3 feet west of the slab because of the trucks parked along the slab. He was then driving, as he testified, about 40 or 45 miles per hour. The estimates as to the speed of the truck varied from less than 5 miles to 10 or 12 miles per hour. Plaintiff stated he expected the truck to stop, but that it came onto the pavement of the main highway without stopping, proceeded across the center line and turned north leaving the trailer blocking the west side of the pavement. When the front of the truck was almost to the center line of the pavement and plaintiff saw that it was not going to stop, he immediately applied his brakes. He pushed the brake clear down and held it there. The brakes were in good condition, but the surface of the pavement was covered with sand, preventing him from stopping as soon as he could have done under ordinary conditions. All of the tires on plaintiff's car slid. He tried to steer over to the right far enough to go between the truck and the gasoline pumps of the filling station, but was not able to do so. His left front wheel hooked inside the rear wheel of the tractor on Van Donge's truck. After the collision plaintiff's left front fender was about two feet west of the edge of the pavement; the right front wheel was off the slab; the door of the plaintiff's car was even with the south pump of Phillip's or Heckerdon station. Plaintiff suffered injuries for which he sues.

Van Donge testified that he came to a complete stop before entering Highway 81; that he looked both ways and saw no car approaching from either direction. The weather was clear and the intersection was well lighted. He testified that he stopped at a point where his front wheels were possibly two feet west of the pavement. The cab was three to three and a half feet west of where the front wheels stood. He stopped at a point from which, as he testified he had a "reasonable" vision down the highway. There was no evidence that he ever looked to the south again. He admitted he did not see plaintiff's car until the crash.

The jury gave a general verdict in plaintiff's favor and returned answers to special questions. Many errors are specified.

It is contended that plaintiff's negligence bars his recovery as a matter of law. Defendants contend that plaintiff's testimony as to the speed of his car cannot be believed. The sheriff who investigated the accident testified the plaintiff "skidded one tire 49 yards." The jury found one skid mark extended 49 steps and one skid mark 18 steps south of the point of impact. Defendants assert that "the plaintiff after skidding his tires a distance of 147 feet collided with the...