Folkerts v. Kansas Power & Light Co.
| Decision Date | 07 July 1962 |
| Docket Number | No. 42834,42834 |
| Parties | Arnold FOLKERTS, Appellee, v. The KANSAS POWER AND LIGHT COMPANY, a Corporation, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
The record in an action to recover for personal injuries sustained in a collision of two automobiles at a blind rural intersection, examined, and it is held: That under the rules of law and the attending circumstances, set forth in the opinion, the district court did not commit reversible error: (1) in overruling defendant's demurrer to plaintiff's evidence or its motion for a directed verdict; (2) in refusing to submit requested special questions or in submitting its own special questions, and (3) in approving the verdict of the jury containing an award of damages for loss of earnings in the amount of $30,000.
Robert E. Russell and Lawrence D. Munns, Topeka, and Harry W. Colmery, James E. Smith and O. R. Stites, Jr., Topeka, on the briefs, for appellant.
Harold E. Doherty, Topeka, and Hugh D. Mauch, Great Bend, and James E. Benfer, Topeka, and Melvin O. Nuss, Vernon L. Nuss, and James P. Johnstonn, Great Bend, on the briefs, for appellee.
This was an action to recover for personal injuries sustained in a collision of two automobiles at a blind rural intersection in Rush County. Judgment was for the plaintiff, and the defendant has appealed.
There is very little, if any, dispute as to the facts. They are briefly summarized: The collision occurred at about 6:15 p. m. at the intersection of two county roads; both were graveled, and approximately 25 feet in width; the north-south road on which the defendant's car was traveling north was elevated slightly above the east-west road on which the plaintiff was traveling west. Weeds and crops were growing at the southeast corner of the intersection, limiting visibility. When the plaintiff was about a quarter of a mile east of the intersection he was traveling 30 to 35 miles per hour. He was familiar with the intersection and knew it to be dangerous and hazardous, and as he approached it, he reduced his speed to ten or fifteen miles per hour. When he was 50 to 60 feet from the intersection he looked to the north and to the south, and could see tall feed and weeds and some of the county road about 40 feet south. When he reached a point ten feet east of the intersection, he observed the defendant's car 150 feet south. Believing he had ample time to cross, he proceeded into the intersection. As his car was leaving the intersection, it was struck in the left rear portion by the defendant's car.
The defendant's driver testified that he observed plaintiff's car when it was 25 feet east of the intersection and at that time he was 175 feet south of the intersection; that he traveled about 100 feet before he applied his brakes; that he left 103 feet of skid marks, and that he struck plaintiff's car, demolishing both vehicles. He further testified that it would take from 300 to 400 feet to stop his car at the speed he was traveling; that he was familiar with the intersection and knew it to be dangerous and hazardous; that he had worked his crew late that evening and was hurrying home; that he could not stop within the range of his vision, and that one could not slow down for every intersection.
A passenger in the defendant's car testified he was crew foreman for the defendant, and they were probably 200 or 300 feet south of the intersection when the plaintiff's car was 20 or 30 feet east of it; that because he threw his hands up and covered his face he did not see the plaintiff's car again, nor could he see the speedometer to know how fast they were going.
The plaintiff's son was riding with him and he testified that the defendant's car was traveling between 70 and 75 miles an hour when the driver applied his brakes, and that it slid or skidden to the west or left side of the road, striking the plaintiff's car on its side toward the rear.
The plaintiff was thrown from his car and suffered severe permanent injuries requiring long hospitalization and continued medical and surgical care.
The case was tried by a jury which returned a general verdict for plaintiff in the amount of $55,000, and answered special questions as follows:
'1. Do you find that the defendant's driver was guilty of any acts of negligence which were a proximate cause of the collision?
Answer: Yes.
'2. If you answer No. 1 in the affirmative, state what those acts of negligence consisted of?
'Answer:
1) Failure to keep his automobile under reasonable and proper control.
2) Defendant's driver failed to yield the right of way to the vehicle driven by plaintiff.
'3. Do you find that the plaintiff was guilty of any acts of negligence which were a proximate cause of the collision?
Answer: No.
'4. If you answer No. 3 in the affirmative, state what those acts of negligence consisted of?
Answer: No answer.
'5. If you find in favor of the plaintiff, how much do you allow for the following elements of damage:
Past Medical Expense: $3,000
Future Medical Expense: $ 7,000
Loss of Earnings: $30,000
Pain & Suffering: $5,000
Permanent Injury: $10,000.
Total: $55,000.'
The defendant first contends the district court erred in overruling its demurrer to the plaintiff's evidence, its motion for a directed verdict at the close of all the evidence, and its motion for judgment. It argues that the admissions of the plaintiff during the course of his testimony clearly established that he was contributorily negligent as a matter of law, and cites and relies upon Green v. Higbee, 176 Kan. 596, 272 P.2d 1084.
In determining whether a plaintiff is guilty of contributory negligence when tested by a demurrer, the question must be submitted to the jury if the facts are such that reasonable minds might reach different conclusions (Cain v. Steely, 173 Kan. 866, 873, 252 P.2d 909). Simply stated, did the plaintiff's evidence show that he acted as an ordinary, prudent person would act under the same or similar circumstances? We are of the opinion that reasonable minds might reach different conclusions on the question, and that it was properly submitted to the jury (Lawrence v. Kansas Power & Light Co., 167 Kan. 45, 49, 204 P.2d 752). The evidence was undisputed that the plaintiff looked to the south and could see part of the county road 40 feet to the south of the intersection and no cars were in sight. He reduced his speed from 30 to ten or fifteen miles per hour. When he was ten feet from the intersection he saw the defendant's car 150 feet to the south and he thought he had ample time to cross. As the front of his car was leaving the intersection and when there was room for the defendant's car to have passed to the rear, the defendant's vehicle skidded or swerved to the left or west side of the road and struck the left side of the plaintiff's car at the rear. We think what was said and held in Domann v. Pence, 183 Kan. 135, 139, 325 P.2d 321, is controlling. The facts of both cases are almost identical, and the reader is referred to that opinion. It was there held that those facts did not give rise to the application of the rule announced in Green v. Higbee, supra, where it was held that a demurrer was properly sustained to the plaintiff's evidence which showed that plaintiff had entered a blind rural intersection at a speed of approximately 40 to 50 miles per hour. The district court was of the opinion this was not a 'Green v. Higbee' case. We agree. An examination of instruction 13 establishes that the jury was fully and properly instructed where an accident occurs at a blind intersection of rural roads without stop signs. We are of the opinion the district court did not err in overruling the defendant's demurrer and its motions for a directed verdict and for judgment.
It is next contended that the district court committed reversible error when it denied the defendant the right to submit to the jury ten special questions as provided by G.S.1949, 60-2918, upon claimed material controverted issues of fact. The questions read:
The defendant's contention cannot be sustained. Under the issues formed by the pleadings and the evidence, the only questions of ultimate fact were: Was the defendant negligent? Was the plaintiff contributorily negligent? What was the proximate cause? And, what were the items of damages? All of those were covered in the special questions submitted to the jury. The well-considered case of Albin v. Munsell, 189 Kan. 304, 369 P.2d 323, is decisive of the question under consideration, hence we quote at length from that opinion:
'Appellants next complain because the trial court refused to give most of the special questions prepared and asked by them and instead prepared and gave some of its own. The gist of all arguments advanced on this point is that under the provisions of G.S.1949, 60-2918, appellants were entitled to request ten questions and the court was required to give them. Conceding appellants had a right...
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