Fry v. Cadle

• Decision Date: 07 April 1951
• Docket Number: No. 38134,38134
• Citation: 229 P.2d 724,171 Kan. 14
• Court: Kansas Supreme Court
• Parties: FRY v. CADLE.

Page 724

229 P.2d 724

171 Kan. 14

FRY v. CADLE.

No. 38134.

Supreme Court of Kansas.

April 7, 1951.

Syllabus by the Court

In determining whether as a matter of law a plaintiff is guilty of contributory negligence which precludes his recovery for injuries sustained, all of the testimony favorable to the plaintiff must be accepted as true, and if the facts are such that reasonable minds might reach different conclusions thereon, the question must be submitted to the jury and cannot be determined by the court as a matter of law.

Payne H. Ratner, Jr., of Wichita (Payne H. Ratner, Ora D. McClellan, Eugene L. Pirtle, Louise Mattox, and Harry E. Robbins, Jr., all of Wichita, on the briefs), for appellant.

J. Rodney Stone, of Newton (Bernard Peterson, of Newton, on the briefs), for appellee.

WERTZ, Justice.

This was an action to recover damages for personal injuries alleged to have been sustained as a result of an intersection collision between two automobiles driven by plaintiff and defendant. Defendant's demurrer to plaintiff's evidence was sustained and judgment entered for defendant. Plaintiff appeals, charging error of the court in sustaining defendant's demurrer and in rendering judgment for defendant.

Plaintiff's evidence in support of allegations contained in his amended petition may be summarized as follows: Plaintiff and a friend were, on the morning of August 10, 1948, returning from a business trip to Newton in Plaintiff's father's car, a 1937 Ford. They had traveled south from Newton on highway No. 81, turned west on an asphalt surfaced highway on the county line, leading directly to the town of Sedgwick, in the vicinity of which plaintiff lived. One mile east of Sedgwick this east and west asphalt road is intersected by a north and south gravel township road, both of which are about twenty feet in width. There are no stop signs at the intersection on either highway. Heavy hedge was growing on the north edge of the blacktop county highway east from the intersection and along the east side of the gravel township road north of the intersection. The hedge along the edge of both roads had been trimmed back sixty feet from the intersection. This hedge grew on top of an embankment on the north side of the east-west road, and heavy and tall weeds were growing on the embankment extending from the end of the trimmed hedge to the intersection. Plaintiff was driving west on the county line blacktop highway thirty-five to forty miles per hour; when he reached a point about 200 feet away from the intersection in question, he decreased his speed to thirty miles per hour; having lived in that vicinity for some time, he knew the view of the county highway to the north was obstructed by an embankment, heavy hedge and tall weeds growing along the east edge of the township road north of the county road and along the north edge of the county road. Plaintiff had a clear view to the south and saw there were no automobiles approaching from that direction; he looked northward and could see no automobiles approaching from that direction; he continued looking northward and could see no cars until he had entered the intersection, when he saw defendant's automobile coming from the north about twenty-five feet from the intersection. Plaintiff immediately applied his brakes and swerved southward, but defendant without slackening the speed of his automobile drove straight ahead into the intersection and into the middle of the right side of plaintiff's automobile, the collision occurring in the west half of the intersection; plaintiff's car was overturned and thrown into the ditch at the southwest corner of the intersection, about sixty-five feet from the point of impact, and defendant's Buick was spun around and came to a rest about twenty-four feet from the point of impact, headed in a northwesterly direction.

Kenneth Swindler, riding with plaintiff at the time of the collision, testified on behalf of plaintiff that he saw Mr. Cadle, the defendant, at the intersection after the accident and heard him twice say to plaintiff that 'he just didn't see' us. Plaintiff's injuries sustained by reason of the collision will not be narrated as such would serve no useful purpose in determining the issues involved herein.

The following statute was in force at the time of the accident: G.S.1949, 8-550(a). 'The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway.'

As grounds for his demurrer, defendant contends plaintiff's evidence fails to prove a cause of action and shows plaintiff to have been guilty of such contributory negligence as would bar recovery.

We first consider defendant's demurrer to plaintiff's evidence. Was there any substantial evidence to sustain plaintiff's claim? In testing the sufficiency of evidence as against a demurrer, the court shall consider all of plaintiff's evidence as true; shall consider that favorable to plaintiff, together with all reasonable inferences to be drawn therefrom, and disregard that unfavorable to plaintiff; and shall not weigh any part that is contradictory nor weigh any differences between his direct and cross-examination. And if, so considered, there is any evidence which sustains the plaintiff's case, the demurrer should be overruled. McCracken v. Stewart, 170 Kan. 129, 223 P.2d 963; Hukle v. Kimble, 169 Kan. 438, 219 P.2d 434; Revell v. Bennett, 162 Kan. 345, 176 P.2d 538; Harral v. Kent Corporation, 168 Kan. 322, 212 P.2d 356.

Guided by these well-established rules of law, upon a fair survey of the record narrated above, we think the trial court was in error in sustaining the demurrer of defendant to plaintiff's evidence. From the testimony it is clear that plaintiff entered the intersection from the east...