Goodloe v. Jo-Mar Dairies Co.

• Decision Date: 04 October 1947
• Docket Number: 36869.
• Citation: 163 Kan. 611,185 P.2d 158
• Parties: GOODLOE v. JO-MAR DAIRIES CO.
• Court: Kansas Supreme Court

185 P.2d 158

163 Kan. 611

GOODLOE v. JO-MAR DAIRIES CO.

No. 36869.

Supreme Court of Kansas

October 4, 1947

Rehearing Denied Oct. 22, 1947.

Appeal from District Court, Pratt County; Clark A. Wallace, Judge.

Action by Ivan Goodloe against Jo-Mar Dairies Company for injuries sustained by plaintiff as a result of a collision with defendant's motortruck. From an order sustaining defendant's demurrer to the evidence, plaintiff appeals.

Judgment affirmed.

Syllabus by the Court

In an action for damages for personal injuries sustained by a pedestrian as a result of a collision with a motortruck at a time when such pedestrian was attempting to cross a city street, between intersections and not within a marked crosswalk, the record is examined and it is held the trial court properly sustained a demurrer to the plaintiff's evidence on the grounds (1) such evidence failed to establish the defendant's negligence as a matter of law, and (2) the plaintiff's own evidence disclosed that he was guilty of negligence which was the proximate cause of his injury.

W. B Hess, of Pratt (Paul R. Wunsch, of Kingman, on the brief) for appellant.

Wayne Coulson, of Wichita (Howard T. Fleeson, Homer V. Gooing, Paul R. Kitch, Manford Holly, and Dale M. Stucky, all of Wichita, on the brief), for appellee.

PARKER Justice.

This is an action to recover damages for personal injuries sustained by a pedestrian as a result of a collision with a motor truck. Plaintiff appeals from an order sustaining defendant's demurrer to the evidence.

There is no issue with respect to the pleadings, hence allegations to be found therein need not be related at length. For our purposes it can be said the petition alleges that plaintiff was struck and severely injured by defendant's truck while it was being driven by one of its employees in a northerly direction on the west side of the center of Main street in the city of Pratt and charges that his injuries, therein fully described, resulted from several particular acts of negligence on the part of defendant, each and all of which are averred to be the direct and proximate cause of his condition. Defendant's answer denies any and all negligence, charges that the collision and plaintiff's injuries are the proximate result of his own negligence and alleges that even if defendant was guilty of negligence in any particular whatsoever the plaintiff was likewise guilty of negligence contributing to the cause of his injuries. The reply is a denial of all new matters set forth in the answer.

With issues thus raised the case came on for trial to a jury. After the plaintiff had adduced his evidence and rested defendant demurred thereto. The trial court sustained the demurrer upon two grounds: (1) That the evidence was insufficient as a matter of law, and (2) that it disclosed that the plaintiff was guilty of negligence which was the proximate cause of his injury.

In our discussion and decision of the issues we shall speak of the parties as they appeared in the court below.

At the outset in support of his position on appeal plaintiff argues the judgment shows error on its face. He argues the trial court found defendant was guilty of no negligence and then held plaintiff was guilty of contributory negligence with the result the grounds for the decision as rendered are wholly inconsistent, the first being contrary to the second. The argument misconceives the import to be given the second ground of the trial court's decision which we construe to be that plaintiff's negligence precluded his recovery but even so the contention lacks merit. The well established rule is that if the trial court renders a correct judgment under the facts and the law, a judgment will not be disturbed merely because wrong reasons are given for its rendition. City of Wichita v. Boles, 156 Kan. 619, 135 P.2d 542; Egnatic v. Wollard, 156 Kan. 843, 846, 137 P.2d 188; Nebraska Hardware Mut. Ins. Co. v. Johnson, 156 Kan. 756, 137 P.2d 125; State Highway Comm. v. Stadler, 158 Kan. 289, 294, 148 P.2d 296; Greep v. Bruns, 160 Kan. 48, 60, 159 P.2d 803, and Arensman v. Kitch, 160 Kan. 783, 792, 165 P.2d 441. We therefore turn to the record to see if it upholds the judgment.

The factual picture disclosed by the evidence up to the moment just prior to the occurrence of the accident resulting in plaintiff's injuries is not a subject of dispute between the parties and can be stated thus:

On October 1, 1945, the plaintiff was 48 years of age, he had a good average income and he was strong and healthy both in mind and body. At that time, and for several years prior thereto, he had engaged in the auto repair business and the selling and servicing of farm implements in the city of Pratt. His place of business was located on the east side of the Five Hundred block on south Main street in the heart of the business section of that city, about ninety feet north of where such street intersects with Sixth street.

South Main street, as the name indicates, is the main business street of Pratt and runs north and south. It is one hundred feet wide from the lot line with sixteen feet of sidewalk and dirt parking strip on each side. Its remaining sixty-eight feet is paved with brick. The Five Hundred block has no marked crosswalks and is bounded on the north by Fifth street and on the south by Sixth street. There is an electric stop and go signal at the intersection of Fifth and Main but none at the intersection of Sixth and Main.

Plaintiff was accustomed to crossing Main street in the middle of the block between the intersections at Fifth and Sixth streets and had never had an accident while doing so.

The day of October 1, 1945, was bright and clear. The streets of the city were dry. On the morning of that day plaintiff had been doing some work on an automobile which was parked diagonally in the middle of the block on the west side of Main street and almost directly across the street from his place of business. Just as he was completing that work one of plaintiff's friends, a Mr. Don Heading, happened to be passing by the stopped to talk to him. Just to the south of the car on which plaintiff had been working was a parked truck having a long wheel base and a thirteen foot bed but there was nothing about it, or anything else on Main street at the time, which interfered with the vision of anyone who had occasion to look down such street to the south. The sun was shining brightly. The two men visited briefly for a moment. Plaintiff said that he was busy, had all he could do, and that he had just told some man that if he would bring his car around to the back end of the shop he would fix it. At about 10 a.m. Heading, who was going south, turned to leave. As he did so he saw plaintiff start to walk east across the street, he observed him light a cigar when about two feet from the rear of the parked truck and then walk on to the east. Just as the witness reached a spot on the west sidewalk, eight or ten feet to the south of the parked truck, he heard a crash and immediately turned around to see what had happened.

From this point on the story is not so clear and had best be stated in record form. As that is done it is well to remember that except for the driver of the defendant's truck and the plaintiff, to whom reference will be made later, there were no eye witnesses to the impact between plaintiff and the truck, and that only two persons testified as to what took place immediately thereafter.

One of such witnesses, Don Heading, testified as follows:

'When I was about 8 or 10 feet south of the Chevrolet truck I heard a noise just like two trucks going together. I looked around and saw Goodloe spinning. I dropped what I had in my arms and run out to him. I saw him falling. Goodloe was going east and the truck hit him and he was just spinning and fell a little bit to the northwest. * * *'

Cross Examination----

'Goodloe had lit his cigar before he ever started across the street. That there was no question about that. That he was in plain view of the accident and that as he heard the impact and turned around he saw Mr. Goodloe right at the side of this truck spinning around. * * *'

Redirect Examination----

'That the truck hitting Goodloe was a pick-up, that the large truck parked on the west side of the street had a flat bed on it, that he could easily see over the bed, that Goodloe, was hit by the front panel of the door; that is, right there where the glass rolls up and there is the back panel. * * *'

The record discloses additional testimony on the part of this same witness in the form of questions and answers. We are not told just when, during the course of his examination, this testimony was elicited; whether on direct, cross or redirect examination. However, it explains and clarifies other statements made by Mr. Heading and for that reason will be quoted. The record on this particular phase of the evidence reads:

'Mr. Heading testified in detail as to what he saw and his testimony in that regard was as follows:

'Q. Now when you heard the impact and turned, what was the first thing you saw? A. I saw Mr. Goodloe right at the side of this truck, right about the door panel spinning.

'Q. He was spinning right about the door panel? A. Yes sir.

'Q. Now from your position there, were you able to tell what part of the side of the truck struck what part of Mr. Goodloe? A. Well, I would say he either hit the front part of the door panel where the windshield glass joins with the door post or the glass, or the door panel; that is where the door shuts back and he hit on the right side of the head, I guess it was about here (indicating) on the right side of the face (indicating).

'Q. On the right side, you are indicating? A. Yes.

'Q. That is the

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