Gay v. Samples
| Decision Date | 06 February 1933 |
| Parties | JOHN GAY, RESPONDENT, v. CHARLES SAMPLES ET AL., APPELLANTS |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Boone County.--Hon. H. A. Collier Judge.
Judgment affirmed.
Franklin E. Reagan for respondent.
Clark Boggs, Cave & Peterson for appellant.
Plaintiff brought this action for damages caused by an automobile owned and driven by Kenneth Summers coming in collision with a truck, the property of plaintiff. Upon trial plaintiff had a verdict and judgment in the sum of $ 300. The defendants have appealed.
The collision occurred on the Hallsville farm-to-market road in Boone County. The defendant Clifton Samples drove an automobile in an easterly direction upon that road, and at the same time the defendant Kenneth Summers also drove an automobile thereon in the same direction. The automobiles thus operated by said defendants travelled practically side by side at a speed of forty-five to fifty miles an hour for a distance of about one-half mile, when they overtook and passed a team and wagon travelling in the same direction. In passing the team and wagon the automobiles operated by said Summers and Samples swerved to the left and the automobile driven by Kenneth Summers was travelling upon the north portion of the highway and while occupying that position collides with plaintiff's truck. At this instant of time the automobile driven by Clifton Samples was upon the center or to the north of the center of the highway and had crowded the other automobile to the north side thereof.
It is not contended that the partnership firm of Samples & Elsea is not liable for the negligence, if any, of the defendant Clifton Samples proximately causing the damages, nor is it contended by either party that said partnership of Clifton Samples is liable in event the damages sued for were caused by the sole negligence of Kenneth Summers.
The defendants contend that verdict should have been directed in favor of the partnership and in favor of the defendant Clifton Samples. In support of this insistence it is argued that the automobile operated by the defendant Clifton Samples did not strike plaintiff's truck, and that the damages to the truck resulted solely from the act of the defendant Kenneth Summers. This insistence does not take into consideration the evidence favorable to plaintiff to the effect that Summers and Samples, for a distance of about one-half mile, was each driving an automobile at a high rate of speed and occupying practically the entire traveled portion of the highway, and that Samples, at or about the time he passed the team and wagon, saw the approaching truck and evidently knew that when he swerved to the left the Summers automobile, in order to avoid a collision with his automobile, would be crowded to the extreme north side of the highway; that at the instant of collision the automobile operated by Samples was at the side of the truck "cutting back" to the southeast. It is not necessary to determine whether or not Summers and Samples were racing within the technical meaning of that term. Suffice it to say they were jointly engaged in committing a tort and were therefore jointly and severally liable for the damages resulting therefrom. [Shafir v. Sieben, 233 S.W. 419; Reynolds v. Metropolitan, 168 S.W. 221.] They did not have right to use the highway in a manner not consistent with its use by others. [Thompson v. Smith, 253 S.W. 1023.] "The party charged may be held liable for anything which, after the injury is complete, appears to have been a natural and probable consequence of his act or omission." [Combs v. Standard Oil Co., 296 S.W. 817, 819.]
The damages to plaintiff's truck were the natural and probable consequence of the wrongful conduct of Samples and Summers. Clearly the case was for the jury, and the request for directed verdict was properly denied.
The defendants requested the court to instruct the jury as follows:
"The court instructs the jury that the accident between plaintiff's truck and the automobile of the defendant Kenneth Summers was not the result of the defendant Clifton Samples driving his automobile at a high, excessive and dangerous rate of speed."
The court refused the instruction and that ruling is assigned as error.
Defendants say that: "Plaintiff cannot recover unless it is shown that the collision would not have occurred except for the speed at which Samples was driving his car."
One of the specifications of negligence alleged in the petition was that "the defendants saw, or by the exercise of the highest degree of care could have seen plaintiff's automobile on...
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