Fralick v. Kansas City Public Service Co.

• Decision Date: 12 November 1949
• Docket Number: No. 37676,37676
• Citation: 211 P.2d 443,168 Kan. 134
• Parties: FRALICK v. KANSAS CITY PUBLIC SERVICE CO. et al.
• Court: Kansas Supreme Court

Page 443

211 P.2d 443

168 Kan. 134

FRALICK v. KANSAS CITY PUBLIC SERVICE CO. et al.

No. 37676.

Supreme Court of Kansas.

Nov. 12, 1949.

Syllabus by the Court.

1. A general verdict imports a finding upon all of the issues in the case not inconsistent with the special findings, which are to be given such a construction, if possible, as will bring them into harmony with the general verdict, but if the special findings cannot be reconciled with the general verdict, are sufficiently full and complete in themselves and not inconsistent in themselves, judgment must follow the special findings.

2. The trial court not only has the power, but the duty, to set aside a verdict and grant a new trial if it is not satisfied with the verdict and should not render a judgment if not satisfied with the verdict.

3. If in ruling on a motion for a new trial, the trial court stated the ground on which the new trial was granted, and that ground is one which the supreme court can deal with as readily as the trial court, the supreme court will examine the question to see whether the reason given, as a matter of law, justified the ruling made.

4. Following Ferguson v. Kansas City Public Service Co., 159 Kan. 520, 156 P.2d 869, it is held that it was the duty of the trial court to sustain defendants' motion for judgment in their favor on the answers to the special questions notwithstanding the general verdict where that court in effect approved the answers to the special questions, and it had no authority to grant a new trial upon the ground a conflict existed between the general verdict, which had inherent in it a finding that plaintiff was not guilty of negligence which contributed to her injuries, and the answer to a special question clearly showing her negligence.

5. The record examined in an action for damages for negligence, and held, that the trial court erred in denying the defendants' motion for judgment on the answers to special questions notwithstanding the general verdict and in sustaining the plaintiff's motion for a new trial.

Edward M. Boddington, of Kansas City, argued the cause, and J. O. Emerson and Edward M. Boddington, Jr., both of Kansas City, and Charles L. Carr, of Kansas City, Missouri, on the briefs for the appellants.

Robert L. Boyce, Jr., of Kansas City, argued the cause, and Paul H. Ditzen and William E. Scott, both of Kansas City, on the briefs for the appellee.

THIELE, Justice.

This was an action for personal injuries sustained by a passenger in a street car against the owner of the street car, its motorman and the driver of a truck, and alleged to have occurred as the result of negligence in the operation of the street car and the truck. The owner of the street car and its motorman appeal from an order granting the plaintiff a new trial, and from precedent rulings.

For the purposes of disposing of the appeal it may be said that plaintiff's petition alleged the corporate defendant was engaged in the business of transporting passengers in Kansas City by means of street cars and busses; that on June 14, 1947, she was a passenger on a westbound street car operated by defendant Callahan and that the was sitting on the left-hand side of the car with her left elbow resting on the window sill next to her seat; that at a stated place the street car collided with a Ford truck operated by defendant Browning and that either the truck or a bedspring on the truck struck her left elbow, causing injuries alleged in detail that all of her injuries were caused by the carelessness and negligence of the company and the operator of the street car stated in eight particulars, which need not be set out, and by the negligence of defendant Browning. Her prayer was for money damages. For present purposes it may be said the answer of the defendant company and Callahan alleged their version of the accident, the physical features of the street car and that plaintiff was guilty of negligence which contributed to her injuries in that she allowed her elbow to rest upon the window sill and did not keep the same within the street car.

The defendant Browning filed no answer and was not represented at the trial. The word defendants as hereafter used is intended to refer to the company and its motorman.

At the trial plaintiff offered evidence in support of her allegations and defendants' demurrer thereto was overruled. The defendants offered their evidence and at the conclusion of all the evidence renewed their demurrer which was overruled. Under instructions, of which no complaint was made, the cause was submitted to the jury, which returned a general verdict in favor of the plaintiff and answered special questions as follows:

'1. How much space was there: (a) from the south side of the street car to the dirt roadway adjacent to the south side of the paving; and (b) from the south side of the paving to the south edge of the dirt roadway?

'Answer: (a) 13ft. (b) 8 ft.

'2. Was the truck on the eastbound or south car tracks when the front end of the truck passed the south front of the street car?

'Answer: Yes.

'3. If you answer Question No. 2 in the negative, then state the distance between the left front of the body of the truck and the south front of the street car at the time it passed the front of the street car.

'Answer:

'4. If you find an object in the truck struck a part of the street car, then state: (a) whether or not it had been protruding before the truck passed the street car; (b) whether or not it slipped from its load and into the street car after the front end of the truck had passed the front end of the street car; and (c) what part of the object, if any, contacted what part of the street car.

'Answer: (a) Yes. (b) No. (c) Rear corner.

'5. Was the manner of driving on the part of Chester Browning, the truck driver in this case, the sole proximate cause of the accident?

'Answer: No.

'6. If you find for the plaintiff and against the defendant railway company and its operator, W. L. Callahan, then state what negligence you find said defendant and operator guilty of, if any.

'Answer: Wasn't watching.

'7. Did defendants, the railways company and its operator, Callahan, provide a safe arm rest on the inside of the car for plaintiff's left arm?

'Answer: Yes.

'8. Did plaintiff have her left arm on the window ledge or her elbow out of the window at the time and place in question? If you answer 'Yes,' state which.

'Answer: Yes--window ledge.

'9. If you answer Question No. 8 in the affirmative, state whether or not by such conduct on the plaintiff's part she was guilty of negligence, and thereby contributed to her injury as a proximate cause thereof.

'Answer: Yes.'

After return of the verdict and special findings, the defendants filed two motions, one for judgment on the answers to the special questions and notwithstanding the general verdict, the other to set aside the answers to questions 4(a), 4(b), 5 and 6, for reasons assigned in the motion. The plaintiff filed three motions, one for judgment on the general verdict, one to set aside the answer to question 9 for reasons assigned in the motion, and one for a new trial 'as to damages only.' Later and during the course of argument thereon, and over defendants' objection that it was too late, the trial court permitted the plaintiff to amend her motion for a new trial by striking therefrom the phrase 'as to damages only.' After hearing the several motions the trial court overruled both of defendants' motions, overruled the plaintiff's motion for judgment on the general verdict, her motion to set aside the answer to question 9 and sustained her motion, as amended, for a new trial generally.

In due time the defendants perfected their appeal to this court from all adverse rulings, and they specify as error the trial court's rulings (1) on their demurrer to plaintiff's evidence; (2) on their demurrer renewed at the close of the evidence; (3) on their motion for judgment on the special findings of the jury; (4) on their motion to set aside certain special findings of the jury; (5) permitting the plaintiff to amend her motion for a new trial; and (6) sustaining plaintiff's motion for a new trial. The plaintiff has filed no cross-appeal.

In our opinion it is not necessary that we consider each of the above specifications of error for what is hereafter said concerning the trial court's ruling on the defendants' motion for judgment on the special findings and the plaintiff's motion for a new trial disposes of the appeal.

We start consideration of the motion for judgment on the special findings bearing in mind the oft-repeated rules that a general verdict imports a finding upon all of the issues in the case not inconsistent with the special findings; that the special findings are to be given such a construction, if possible, as will bring them into harmony with the general verdict, but if the special findings cannot be reconciled with the general verdict, are sufficiently full and complete in themselves and not inconsistent in themselves, judgment must follow the special findings. Cases so holding include the following: Giltner v. Stephens, 166 Kan. 172, 200 P.2d 290; Gabel v. Hanby, 165 Kan. 116, 193 P.2d 239; Lord v. Hercules Powder Co., 161 Kan. 268, 167 P.2d 299; Glenn v. Montgomery Ward & Co., 160 Kan. 488, 163 P.2d 427; Walker v. Colgate-Palmolive-Peet Co., 157 Kan. 170, 139 P.2d 157; Jilka v. National Mutual Casualty Co., 152 Kan. 537, 106 P.2d 665; and others cited in the above. See also Hill v. Leichliter, 168 Kan. 85, 211 P.2d 433.

It is not necessary that we again detail the answers to the special questions submitted to demonstrate that they are not inconsistent one with the other. In substance they find that the defendants were negligent and that the plaintiff was likewise guilty of negligence which contributed to her injury. The appellee's argument that the trial court did not err in not rendering judgment on the special findings is that sh...