Goodman v. Wisby
| Decision Date | 06 July 1940 |
| Docket Number | 34813. |
| Citation | 103 P.2d 804,152 Kan. 341 |
| Parties | GOODMAN v. WISBY et al. |
| Court | Kansas Supreme Court |
Rehearing Denied Sept. 11, 1940.
Syllabus by the Court.
Generally it is negligence as a matter of law for a motorist to operate his automobile on a highway at such speed that the automobile cannot be stopped within the distance within which objects can be seen ahead of the automobile.
A motorist, who drove into cloud of dust which so completely obscured his vision that, in view of the speed of his automobile, he was unable to stop within the range of his vision, was guilty of contributory negligence as a matter of law, so as to preclude recovery from owner of contract carrier truck and his insurance carrier for damages sustained in head-on collision, on ground that truck was on the wrong side of the road. Gen.St.1935, 66-1,128.
In an action by the owner of a contract carrier truck to recover damages for injuries sustained by reason of a collision with defendant's automobile and in which defendant filed a cross-petition to recover damages from the plaintiff and his insurance carrier on the ground that plaintiff's truck was on the wrong side of the road, the record is examined and it is held: The demurrer of the insurance carrier to the evidence of the defendant cross-petitioner should have been sustained upon the ground his evidence disclosed he was guilty of contributory negligence as a matter of law.
Appeal from District Court, Dickinson County; Cassius M. Clark Judge.
Action by J. R. Goodman against Dr. Robert Wisby to recover for personal injuries and property damage resulting from a collision between plaintiff's contract carrier truck and an automobile driven by the defendant, wherein the defendant filed a cross-action to recover damages from the plaintiff and from the State Automobile Insurance Association, the plaintiff's insurance carrier. From an order overruling the demurrer of the State Automobile Insurance Association to the evidence introduced by the defendant in support of his cross-petition, the State Automobile Insurance Association appeals.
Order reversed.
C. W Burch, B. I. Litowich, LaRue Royce, L. E. Clevenger, E. S. Hampton, and R. E. Haggart, all of Salina, for appellant.
Paul H. Royer, of Abilene, for appellee.
This was an action to recover for personal injuries and property damage resulting from a collision between plaintiff's contract carrier truck and an automobile driven by the defendant, Dr. Robert Wisby, and a cross-action by the defendant to recover damages from the plaintiff and his insurance carrier.
The plaintiff is not a party to this appeal. The contest here is between the defendant, Wisby, and the defendant, the State Automobile Insurance Association. Wisby is the appellee, and the insurance company is the appellant. The latter has appealed from the order of the trial court overruling its demurrer to the evidence introduced by the defendant, Wisby, in support of his cross-petition.
Plaintiff was riding in his contract carrier truck, which was loaded with rock salt. His son, Maurice C. Goodman, was the driver. It was stipulated that the plaintiff was insured against public liability and property damage as provided by G.S.1935, 66-1,128, under a policy issued by the defendant, the State Automobile Insurance Association. The defendant, Wisby, answered and alleged that Maurice C. Goodman, and the insurance carrier were necessary and proper parties in order to obtain a final determination of the rights and liabilities of the parties and that those parties should be required to answer his cross-petition. They were made parties defendant. A motion by the insurance carrier to set aside the order making it a party defendant, to quash the service on it and to dismiss the action against it, was overruled. No error is now urged touching that ruling.
Issues were joined by appropriate pleadings filed by the plaintiff, the defendant Wisby, and the defendant insurance carrier. The answer of the insurance carrier contained a general denial of each and all allegations contained in the cross-petition of the defendant, Wisby, and further alleged that negligence of the defendant Wisby, caused or contributed to the collision. The defendant, Wisby's reply to that answer was a general denial. The jury was unable to agree upon a verdict and was discharged. The insurance carrier had demurred to the evidence of the defendant, Wisby, upon the ground the evidence of Wisby failed to establish a cause of action under his cross-petition and that his evidence positively disclosed at least contributory negligence on his part. The demurrer was overruled. That ruling constitutes the sole error urged in the instant appeal.
In this appeal we, of course, do not have before us the question whether plaintiff can recover. The issue raised by the demurrer of the defendant insurance carrier is whether the defendant, Wisby, can recover. In other words, can we say, as a matter of law, that his negligence caused or contributed to the collision?
We shall refer to the appellee, Wisby, as the defendant, and to the appellant, the State Automobile Insurance Association, as the insurance carrier. Before discussing the evidence of the defendant we pause to note that the negligence with which the defendant, under his cross-petition, charged the plaintiff was that plaintiff's truck at the time of the collision was traveling on the wrong side of the road. Defendant's cross-petition also alleged, "that a cloud of dust completely obscured his vision and that he did not see plaintiff's truck approaching until the time of the collision, although the sun was shining brightly."
A few undisputed preliminary facts may also be noted. The collision occurred on an east and west graveled county road in Dickinson county. The road was approximately twenty-eight feet in width. Defendant was familiar with the road. Plaintiff was riding in an easterly direction in his truck which was operated by his son, Maurice Goodman. The defendant was traveling in a westerly direction in a Chevrolet automobile. The tires and brakes on his car were in good condition. The collision occurred between seven and seven-thirty o'clock p. m., on August 11, 1938.
The pertinent part of defendant's testimony was substantially as follows: The collision occurred at a point about 322 feet west of the brow of a hill. A car, traveling in a westerly direction, had passed defendant about one-fourth of a mile east of the point of collision. The car passing him caused a heavy cloud of dust. When he got into the cloud of dust he could not see over fifteen or twenty feet ahead of him. When he reached the brow of the hill he was traveling about forty-five miles per hour. He could tell he was far over on the right or north side of the road as he descended because his car was leaning in that direction and by the manner in which the wheels were dancing on the gravel. A pertinent portion of defendant's testimony reads:
Another portion of defendant's testimony is as follows:
Another portion of his testimony was:
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