Hamilton v. Ferguson, 40576
| Decision Date | 08 June 1957 |
| Docket Number | No. 40576,40576 |
| Citation | 181 Kan. 474,312 P.2d 232 |
| Parties | Ruby HAMILTON, Appellant, v. Troy FERGUSON and William J. Zuercher, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
In an action by a passenger in a motor vehicle to recover damages for personal injuries sustained in a three-car collision, the record is examined and it is held, that the trial court did not err in sustaining the separate demurrer of one of the defendants to plaintiff's evidence, but did err in sustaining the other defendant's demurrer, as there was sufficient evidence to make out a prima facie case of the latter defendant's negligence.
Gerald L. Michaud, Wichita, argued the cause, and Ora D. McClellan, Harry E Robbins, Jr., Carol V. Creitz and John B. Wooley, Wichita, were with him on the briefs, for appellant.
Robert C. Foulston, Wichita, argued the cause, and George B. Powers, Carl T. Smith, John F. Eberhardt, Samuel E. Bartlett, Stuart R. Carter, Malcolm Miller, Robert N. Partridge, Robert M. Siefkin, Richard C. Harris and Gerald Sawatzky, Wichita, were with him on the briefs, for appellee Troy Ferguson.
Patrick F. Kelly, Wichita, argued the cause, and W. A. Kahrs and Robert H. Nelson, Wichita, were with him on the briefs, for appellee William J. Zuercher.
This was an action to recover damages for personal injuries sustained by plaintiff (appellant) while riding as a passenger in a pick-up truck involved in a three-car collision on a four-lane highway. From an order of the trial court sustaining defendants' (appellees') separate demurrers to plaintiff's evidence on the ground it failed to show any negligence on the part of either defendant, she appeals to this court.
Inasmuch as the only question for this court's determination is whether plaintiff's evidence was sufficient to make out a prima facie case of negligence against defendants or either of them, it will not be necessary to narrate the pleadings.
All parties are in accord with the elementary rule of law that the trial court in ruling upon a demurrer to plaintiff's evidence must examine the testimony in its most favorable light, giving it the benefit of all inferences, that it shall consider plaintiff's evidence as true, shall consider that favorable to her and disregard that which is unfavorable, shall not weigh any part that is contradictory or any differences between direct of cross examination, and if so considered there is any evidence which sustains plaintiff's case, the demurrer must be overruled. The question of negligence, including determination of proximate cause, ordinarily rests in the province of the jury. It is also a well-established rule in this state in determining whether plaintiff is guilty of contributory negligence when tested by demurrer the question must be submitted to the jury if the facts are such that reasonable minds might reach different conclusions thereon. The numerous citations supporting the mentioned rules of law are found in West's Kansas Digest, Negligence, k136(9), (10), (25), (26), Appeal and Error, k927(5), Trial, k156(2), (3); 4 Hatcher's Kansas Digest [Rev. Ed.], Negligence, §§ 74 and 75.
Plaintiff's evidence in support of the allegations contained in the petition are briefly summarized herein.
The map or drawing admitted in evidence discloses that U. S. Highway 81 running north from Wichita to Newton is a four-lane trafficway. The northbound lanes are concrete, twenty-four feet in width; the southbound, blacktop, twenty-two feet in width. There is a four-foot safety strip or divider, planted to grass, separating the north and southbound trafficways.
On September 19, 1954, plaintiff and a Mr. Aten went to Highway 81 Drive-In theater north of Wichita in a Ford pick-up truck. About 11:00 p. m., when the show was over, they left the theater with the intention of returning to Wichita. Mr. Aten was driving and plaintiff was sitting beside him. Aten, being unfamiliar with the locality, inadvertently turned north away from the city. Plaintiff remarked that he was driving in the wrong direction; Aten then pulled over in the passing lane for...
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