Gabelman v. Bolt
| Citation | 68 S.W.2d 909 |
| Decision Date | 29 January 1934 |
| Docket Number | 17960 |
| Parties | GABELMAN v. BOLT. |
| Court | Court of Appeals of Kansas |
Rehearing Denied Feb. 19, 1934.
Transferred to Supreme Court March 3, 1934.
Appeal from Circuit Court, Jackson County; A. Stanford Lyon, Judge.
Action by Fred Gabelman against J. R. Bolt and another. From a judgment in favor of the plaintiff and against the defendant named alone, the defendant named appeals.
Judgment reversed, and cause remanded for a new trial.
Hackney & Welch and Clyde J. Linde, all of Kansas City, for appellant.
James R. Sullivan, Arthur R. Wolfe, and Roy W. Rucker, all of Kansas City, for respondent.
This is an action for damages growing out of the following occurrence: Plaintiff, in his Essex automobile on his way south on the west or right-hand side of Rockhill road, in Kansas City, was at a standstill on the north side of its intersection with Brush Creek boulevard, an east and west thoroughfare, when defendant Bolt, in a Willys-Knight car going north on the east side of said Rockhill road, and one Frank Bonner, in his Ford coupégoing east on the south side of Brush Creek boulevard, collided in said intersection "and immediately thereafter and in connection with said collision" the Bolt Willys-Knight car violently ran against and struck plaintiff’s Essex, whereby, so it is alleged, plaintiff was seriously and permanently injured.
Originally, the suit was against Bolt, Bonner, and the Sinclair Oil Company, the last named presumably being joined with Bolt as the operators of the Willys-Knight car. However, no service was had on the oil company, and the case was dismissed as to it.
The record recites that: "After counsel for plaintiff announced that he had closed his case, the following proceedings took place in the court’s chambers out of the presence and hearing of the jury:
The Court: Let the record show that at the close of plaintiff’s evidence the defendant Bonner requested a peremptory instruction and the court marked it given and advised the jury of the fact, but told the jury that this would be their judgment at the close of all the evidence. Now, is that the correct way to state it?"
Counsel for defendant Bonner: "Yes."
One of counsel for plaintiff: "Yes, I think so."
After some additional testimony was offered at the request of plaintiff which the court granted, the record recites that:
"Counsel for plaintiff announced to the court that he had no further evidence to offer on his behalf and rested his case in chief.
Plaintiff rests.
The Court: Gentlemen, the defendant Bonner has requested an instruction and under the pleadings and the plaintiff’s evidence, that plaintiff is not entitled to recover from the defendant Bonner, and the court has marked that instruction ‘Given’. There is no evidence in this case showing any liability on the part of the defendant Bonner, so at the close of this case it will become your duty, regardless of how you decide the issues between the plaintiff in this case and the defendant Bolt, it will become your duty to return a verdict for the defendant Bonner, because there is no evidence whatever showing any liability on his part, and that is regardless entirely of the issues as between the plaintiff and the defendant Bolt. That is immaterial. You will have to determine those under all the evidence.
Mr. Linde: To all of which, of course, the defendant Bolt objects and excepts.
(To which ruling of the court, defendant Bolt, by his counsel, then and there duly excepted at the time and still excepts.)"
This left the case, at the close of plaintiff’s evidence in chief, standing against defendant Bolt alone. He immediately offered a demurrer to plaintiff’s evidence, but it was overruled, which, of course, was waived by putting on his evidence. At the close of all the evidence, defendant Bolt again demurred, but this was also overruled. The jury’s verdict was for plaintiff in the sum of $8,888.88. The court, as a condition of overruling the motion for new trial, enforced a remittitur of $3,888.88, and rendered judgment for $5,000 against Bolt only. He duly appealed.
The petition charged negligence against both defendant Bolt and Bonner, in that as they "approached said intersection of said streets and reached said point of collision, said defendants, and each of them, so carelessly and negligently drove and operated their respective automobiles so as to cause the same to collide with each other, and to strike and collide with the automobile in which plaintiff was riding as aforesaid; that at said time and place said defendants, and each of them, carelessly and negligently failed to have and to keep their respective automobiles under reasonable control, and negligently failed to keep a reasonably careful and vigilant lookout ahead thereof and upon the public streets and negligently operated same at a high, dangerous, and excessive rate of speed and negligently failed to give any or a reasonably sufficient warning of the approach thereof; that as a direct result of the joint and concurrent negligence of the defendants, as aforesaid, this plaintiff was seriously and permanently injured as more specifically hereinafter set forth."
The record does not set out defendant Bonner’s answer, but the case was tried, so far as he is concerned, as if it were a general denial.
The separate amended answer of defendant Bolt contained, first, a general denial and then set up that:
"Whatever, if any, injury or damage the plaintiff may have sustained was caused and occasioned solely by the negligence and carelessness of Frank Bonner, defendant herein, who allowed, permitted and caused an automobile which he was driving eastward on Brush Creek Boulevard at the time and place mentioned in plaintiff’s petition to run into and upon and against the automobile which it is alleged this defendant was driving; that the automobile so driven by Frank Bonner struck this defendant’s automobile with such force and violence as to cause the said automobile to be violently propelled into and upon the automobile in which it is alleged the plaintiff was riding.
The defendant further states that said Frank Bonner in causing and permitting his automobile to come into violent contact with the car of this defendant, was guilty of negligence in the following respects:
That at the time and applicable to the place in question there was in force and effect an ordinance of Kansas City, Missouri, known as ordinance No. 56134, passed August 20, 1928, by the council of Kansas City, Missouri, and entitled An Ordinance in Revision of General Ordinances of Kansas City, Missouri, which, among other things, provided as follows:
(Italics mine.)
Defendant states that said Frank Bonner negligently violated the aforesaid provisions of said ordinance in the following particulars, to-wit:
1. In failing to yield the right of way to the vehicle driven by this defendant which vehicle had reached and entered the intersection in question as the car which said Frank Bonner was driving was approaching the same.
2. In failing to yield the right of way to the vehicle which this defendant was driving when said vehicle was approaching from the right of an intersecting highway.
3. In failing to yield the right of way to the automobile which this defendant was driving when said automobile was traveling upon an arterial highway.
4. In failing to observe the instruction of a "Stop" sign on Brush Creek Boulevard as it intersected Rockhill Road.
5. In failing to drive his vehicle in a careful and prudent manner with due regard to the safety of other vehicles."
The reply was a general denial.
The evidence in behalf of plaintiff was, in substance, as follows:
The occurrence in question took place about 8:40 in the morning of January 2, 1930. Plaintiff was in the rear seat of the Essex on the right-hand side. A Mr. Peterson was at the wheel; Mr. Dun was in the front seat on the driver’s right Mr. Aulgur was in the rear seat at plaintiff’s left. The four men were presumably city officials, as they "were on a general inspection trip that we made two or...
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