Giles v. Ternes

• Decision Date: 10 October 1914
• Docket Number: 19,040
• Citation: 143 P. 491,93 Kan. 140
• Parties: JOHN T. GILES, Appellant, v. JOHN P. TERNES, Appellee
• Court: Kansas Supreme Court

143 P. 491

93 Kan. 140

JOHN T. GILES, Appellant, v. JOHN P. TERNES, Appellee

No. 19,040

Supreme Court of Kansas

October 10, 1914

Decided July, 1914.

Appeal from Sedgwick district court, division No. 2; THORNTON W SARGENT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. AUTOMOBILE--Collision with Buggy--Contributory Negligence of Motorist--Pleadings--Cross-petition--Instructions. In an action to recover damages from the owner of a horse and buggy for alleged negligence in colliding with plaintiff's automobile on a highway the defendant filed a pleading called an answer and cross-petition, and in it alleged that the collision was due to the negligence of the plaintiff himself, and on that basis defendant asked a recovery of damages from plaintiff. Held, that contributory negligence of the plaintiff was an issue in the case, and that the court was warranted in instructing the jury to the effect that if the negligence of plaintiff contributed to the injury he could not recover from the defendant although the allegations of the plaintiff's negligence were contained in that part of defendant's pleading designated as a cross-petition.

2. SAME--Lights on Automobile--Purpose of the Statute. The requirement that "Every automobile or similar motor vehicle shall be so constructed as to exhibit during the period from one hour after sunset to one hour before sunrise one or more lamps showing white lights, visible within a reasonable distance in the direction towards which the automobile is proceeding" (Gen. Stat. 1909, § 449) is intended for the guidance and benefit of the persons driving or in charge of an automobile as well as of others who may be using the highway at the same time.

3. SAME--Duty of Motorist in Regard to Lights. It is the duty of the motorist to keep a vigilant watch ahead for other vehicles as well as for pedestrians upon the highway, and the lights are required to enable him to see persons and vehicles on the highway in time to avoid them as well as for the protection of those occupying the automobile.

4. SAME--Duty of Motorist on Meeting Another Vehicle. A motorist is not necessarily negligent when he drives his automobile on the left side of a highway, as he is privileged to use any portion of the traveled part of a highway except when he is about to meet and pass another vehicle, and then under the law of the road he is required to turn to the right.

5. ERROR--Relating to Instructions--Not Properly Here for Review. Without the evidence bearing on any question in the case it can not be determined on an appeal that an instruction given, even if erroneous as an abstract statement of the law, was prejudicial error.

William Keith, and Dempster O. Potts, both of Wichita, for the appellant.

E. L. Foulke, C. A. Matson, and J. D. Wall, all of Wichita, for the appellee.

OPINION

JOHNSTON, C. J.

The appellant, John T. Giles, the owner of an automobile, brought this action against the appellee, John P. Ternes, to recover damages for injuries to his automobile resulting from a collision with appellee's horse and buggy. It appears that the appellant was driving westerly on a public highway near Wichita at a rate of from six to twelve miles an hour at about nine o'clock on the night of August 11, 1912, and that the appellee, with his wife, was driving easterly in his buggy on the same highway. The appellant alleged that the highway at the place where the collision occurred was about eighteen feet wide, that both parties were traveling in the beaten part of the highway, that signal lights were displayed on the automobile which were seen by appellee, that appellee negligently and carelessly failed to turn aside from the center of the roadway and failed to display any lights on his buggy as it was his duty to do, and that because of appellee's carelessness and negligence in these respects the collision of which he complained occurred. The appellee answered, and by way of cross-petition alleged that the collision was caused by the negligence and carelessness of the appellant in not providing his automobile with sufficient lights or such lights as are required by law. The appellee further alleged that when the collision occurred he and his wife were thrown out of the buggy and permanently injured, that the horse appellee was driving was permanently injured and that the buggy was damaged to the extent of $ 25. The appellee therefore asked damages for his personal injuries in the sum of $ 500, for the loss of his wife's services in the sum of $ 2000, for medical attention for both of them to the amount of $ 500, and for injuries to the horse and buggy to the amount of $ 125, or a total damage of $ 3125. On the trial of the action the jury returned a verdict against appellant and fixed the amount of appellee's recovery at $ 585. In answer to special questions submitted by appellant, which only partially covered the case, the jury, in effect, found that the collision occurred on a dark night when the appellant was driving his automobile at a speed of from six to twelve miles an hour, that he only displayed white lights which were visible for a reasonable distance in the direction in which the automobile was proceeding, that he turned his automobile out of the beaten path to the left just before the collision, that he did not know of the approach of appellee's horse and buggy before the accident, and that appellee saw the lights on appellant's automobile before the collision occurred.

The appellant complains that the court erred in refusing to submit some special questions which he presented. In the first place it appears that more than ten of appellant's questions were submitted by the court, and that is the number to which a party is entitled as a matter of right. Whether a greater number will be allowed is within the discretion of the court. (Laws 1913, ch. 239.) The controlling reason, however, why the ruling can not be held erroneous is that the evidence in the case was not transcribed or preserved in any way and without it we can not determine that there was a basis for the questions refused. The refusal to submit special questions is not error if there is no testimony from which the jury might answer them. The absence of the evidence precludes the determination of a number of questions argued by appellant. (Typewriter Co. v. Anderson, 85 Kan. 867, 118 P. 879; Davidson v. Timmons, 88 Kan. 553, 129 P. 133.)

Appellant complains of the submission of...