Gabel v. Hanby

• Decision Date: 08 May 1948
• Docket Number: 37045.
• Citation: 165 Kan. 116,193 P.2d 239
• Parties: GABEL v. HANBY et al.
• Court: Kansas Supreme Court

193 P.2d 239

165 Kan. 116

GABEL v. HANBY et al.

No. 37045.

Supreme Court of Kansas

May 8, 1948

Appeal from District Court, Wyandotte County, Division No. 2; Willard M. Benton, Judge.

Action by John H. Gabel against James E. Hanby and Interstate Transit Line, a corporation, for personal injuries sustained in a collision between plaintiff's truck and a bus. From the judgment, defendants appeal.

Syllabus by the Court.

1. In testing the sufficiency of plaintiff's evidence as against a demurrer, the court shall consider the evidence as true, shall consider that favorable to the plaintiff and disregard that which is unfavorable, shall weigh no contradictions nor differences between direct and cross-examination, and if so considered there is any evidence which supports the plaintiff's case, the demurrer should be overruled.

2. It is the duty of one driving an automobile upon a public highway to look ahead and see vehicles and objects in the line of his vision, and in case of an accident he will be conclusively presumed to have seen what he could and should have seen in the proper performance of his duty.

3. The operator of a vehicle upon a public highway may assume that others using the highway will observe the law and he is not guilty of negligence as a matter of law in acting upon such assumption, until he has knowledge to the contrary.

4. Under G.S.1947 Supp. 8-544 it is not obligatory that the driver of a vehicle about to make a left-hand turn at an intersection of highways shall pass the center line of the highway about to be entered before starting to turn.

5. Mere violations of the statutes regulating traffic on the highways, such as excessive speed, insufficient signals, and other matters of similar nature, are not sufficient to make the driver of an automobile guilty of actionable negligence in an action for damages growing out of a collision of vehicles, unless it appears that such violations contributed to the accident and were thelegal cause of the injuries sustained.

6. Under G.S.1947 Supp. 8-540(b)(2) the driver of an automobile is prohibited from overtaking and passing on the left side of another vehicle traveling in the same direction in the lane ahead of him when approaching within 100 feet of or traversing an intersection of highways.

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

8. In considering the special findings, the court is not permitted to isolate certain findings and ignore others. All are to be considered together and if one interpretation leads to inconsistency and another leads to harmony with the general verdict, the latter is to be adopted.

9. The record examined, and held, the trial court did not err in:

1. Overruling defendants' demurrer to plaintiff's evidence.

2. The admission of testimony.

3. Refusing to give defendants' requested instructions to the jury.

4. Denying defendants' motion to set aside answers of the jury to certain special questions submitted.

5. Denying defendants' motion for judgment in their favor on the answers to certain special questions submitted.

6. Denying defendants' motion for a new trial.

O. B Eidson, of Topeka (T. M. Lillard, Philip H. Lewis and James W. Porter, all of Topeka, and N. E. Snyder, of Kansas City, on the brief), for appellants.

Lee E. Weeks, of Kansas City (Arthur J. Stanley, Arthur J. Stanley, Jr., J. E. Schroeder and Leonard O. Thomas, all of Kansas City, on the brief), for appellee.

THIELE Justice.

This was an action to recover damages for injuries sustained in a collision between the plaintiff's truck and a bus owned by the corporate defendant and driven by the defendant Hanby. Plaintiff recovered and the defendants have appealed.

The gist of the pleadings filed follows: Plaintiff alleged that U.S. Highway No. 40 extending easterly and westerly in Wyandotte County is a four lane thoroughfare and that it is intersected by Nearman Road which runs north and south about two miles west of the city limits of Kansas City; that on August 9, 1945, at about 11:00 o'clock a.m. plaintiff was driving his Ford truck in an easterly direction, and defendant Hanby was driving a bus of defendant Interstate Transit Lines in an easterly direction and in the rear of plaintiff's truck; that at the time plaintiff slowed his truck down to about twelve miles per hour and was in the act of turning to the left or north from the U.S. Highway into Nearman Road when the defendant Hanby driving the bus so negligently and carelessly operated it that he drove it into and against the plaintiff's truck, wrecking it and causing plaintiff to be severely injured; that the defendant Hanby was negligent in the operation of the bus in that he drove and operated the bus at a careless, reckless and unlawful speed of from sixty to seventy miles per hour; that he carelessly and negligently failed to keep a proper lookout and observe the movement of plaintiff's truck upon the highway and failed to have the bus under proper control so that he could stop or turn out in time to avoid striking plaintiff's truck. Allegations as to injuries received need not be set out.

The answer of the Interstate Transit Lines admitted that a collision occurred but denied it occurred by reason of any act, omission or want of due care by its driver but that the collision was proximately caused by the negligence and want of care on the part of plaintiff in that he suddenly and without warning turned his truck from the outside lane where he was proceeding to the left and drove the truck across the inside eastbound lane of the highway at a time when defendants' bus was passing or about to pass plaintiff's truck, thereby driving his truck into the right side of the bus; that the plaintiff made the sudden turn to the left when he heard, or by the exercise of reasonable care should have heard the horn sounded by the driver of the bus and when he knew or by the exercise of due care should have known that the bus was approaching and was about to pass; that plaintiff failed to operate his truck with due regard for the safety of others using the highway in that he moved from one traffic lane to the other without first ascertaining that such movement could be safely made, and that he saw or by exercise of due care could have seen the bus closely approaching from the rear. Defendants' cross petition for damages to its bus need not be reviewed. The general tenor of the answer of defendant Hanby was to deny negligence and to charge the plaintiff with negligence in language similar to that used by his codefendant.

On the issues thus joined a trial was had as a result of which the jury returned a general verdict in favor of plaintiff and answered special questions submitted. Defendants' several post trial motions including a motion for a new trial were denied and the trial court rendered judgment on the verdict in favor of the plaintiff. The defendants duly perfected their appeal to this court, specifying error in particulars which will be considered as set forth in their brief. The parties will be referred to as the plaintiff and the defendants.

In the briefs many cases are cited in support of contentions made. These cases have all been examined, but all will not be mentioned as they are cumulative in character.

Defendants first contend that their demurrer to plaintiff's evidence should have been sustained, and under this heading they present two propositions, first that the evidence shows that plaintiff was guilty of negligence which was the legal cause of his injuries, and second that the evidence did not provide the defendants were guilty of negligence which was the legal cause of plaintiff's injuries. Of these in their order.

Defendants direct our attention to Houdashelt v. State Highway Comm., 137 Kan. 485, 21 P.2d 343, and Crowe v. Moore, 144 Kan. 794, 62 P.2d 846, as upholding their right to demur because plaintiff's evidence disclosed his contributory negligence. Those cases do recognize the rule that while the burden of proving contributory negligence is on the defendant, where plaintiff's own evidence shows him guilty of negligence which precludes his recovery, the defendant may take advantage by demurrer. We note, however, that the instant demurrer, as set forth in the abstract, is only on the ground that the evidence does not tend to prove a cause of action against either defendant. It certainly did not directly challenge the trial court's attention to any claim the evidence disclosed plaintiff's contributory negligence. The abstract, without disclosing it, states there was extensive argument on the demurrer, and as we are not advised what that argument may have been, we shall consider the contention.

The principal contention by defendants is that plaintiff's testimony disclosed that notwithstanding he had a clear vision with every opportunity to see the bus approaching, he never saw it and did not know with what object he collided. In a minor way, stress is laid on a claim that plaintiff's evidence showed he did not give a statutory signal of his intention to turn.

Before reviewing the evidence, we note the oft repeated rule that in testing the sufficiency of evidence, the court is to consider plaintiff's evidence as true, shall consider that favorable to him and disregard that which is unfavorable, shall not weigh contradictions, nor differences between direct and cross-examination, and if so considered there is any evidence...