Hanabery v. Erhardt

• Decision Date: 11 March 1922
• Docket Number: 23,597
• Citation: 110 Kan. 715,205 P. 352
• Parties: WILLIAM C. HANABERY, a Minor, by His Father and Next Friend, J. J. HANABERY, Appellant, v. OTTO ERHARDT, Appellee, et al
• Court: Kansas Supreme Court

205 P. 352

110 Kan. 715

WILLIAM C. HANABERY, a Minor, by His Father and Next Friend, J. J. HANABERY, Appellant, v. OTTO ERHARDT, Appellee, et al

No. 23,597

Supreme Court of Kansas

March 11, 1922

Decided January, 1922

Appeal from Ellsworth district court; DALLAS GROVER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

AUTOMOBILE -- Injury to Pedestrian -- Special Findings -- Contributory Negligence Compels Judgment for Defendant. The answers to special questions examined, and held to control the general verdict for the plaintiff, and to warrant the judgment rendered for the defendants, because they showed negligence on the part of the plaintiff, and due care on the part of the defendant, eliminating the question of last clear chance asserted by the plaintiff.

Samuel E. Bartlett, of Ellsworth, for the appellant.

Ira E Lloyd, and Norris F. Nourse, both of Ellsworth, for the appellee.

OPINION

WEST, J.:

The plaintiff appeals from an adverse judgment rendered on special findings by the jury notwithstanding a verdict in his favor.

The action was for damages for injuries caused by an automobile. The petition alleged among other things that the defendant drove his automobile at a high, dangerous and unlawful rate of speed on the streets of Ellsworth when there was a large number of people congregated upon and about the streets; that he did not have his car under control; did not keep a proper lookout and pay proper attention where he was going; that the plaintiff was lawfully upon Douglas avenue and proceeding across the street carefully and prudently, and that the automobile was near him before he saw it; that the plaintiff immediately started to get out of the way, using all due diligence so to do, but was struck by the car with great violence; and that the driver made no attempt to stop the car or give any warning. Further, that the defendant had a full and continuous and unobstructed view of the plaintiff in time to stop the car and avoid the injury; that he knew or ought to have known of the danger to the plaintiff, and after he discovered the danger, and knew or ought to have known thereof, he carelessly and negligently failed to use care to check the car, and carelessly and negligently drove it against the plaintiff.

The plaintiff was a boy fourteen years old. On the stand he said that he started across the street, about fifty feet, starting out between two cars. He got a little past the middle of the street.

"I did not see the car before it hit me and did not hear the sound of a horn or anything of that kind. I did not know what happened until after I was picked up."

On cross-examination:

"Q. You didn't stop at all? A. No, sir, until the car hit me.

"Q. You didn't stop to look around to see whether a car was coming, did you? A. I looked before I started both ways.

"Q. From the sidewalk, but you didn't stop after you got beyond the automobiles to look at all? A. No, sir.

"Q. No, how long before you started was it that you looked? A. Just right before I started."

The jury returned a verdict in favor of the plaintiff and answered ten special questions. They found that the plaintiff had sufficient age and knowledge to know that it was dangerous to be immediately in front of an automobile driven on the streets, and knew that automobiles were liable to pass where the accident occurred.

"Q. 3. In order to cross the street did the plaintiff leave a place of safety on the sidewalk and pass between automobiles that were parked on the street? A. Yes.

"Q. 4. If you answer the preceding question 'Yes' then state after leaving the sidewalk to cross the street and after passing between the parked automobiles, did the plaintiff look for the approaching automobile driven by the defendant? A. No.

"Q. 5. If you answer the last preceding question 'No' then had he looked would the accident have occurred. A. Possibly.

"Q. 6. After the plaintiff was seen by the defendant did he not stop his automobile as soon as it could be stopped? A. Yes.

"Q. 7. Immediately before the accident occurred, and before the plaintiff got in front of the automobile what if anything was there to prevent the plaintiff from seeing the automobile driven by the defendant? A. Nothing.

"Q. 8. Could not plaintiff have stopped quicker than the defendant could have stopped his automobile, immediately preceding the accident? A. Yes.

"Q. 9. Was plaintiff negligent in not seeing the approaching automobile driven by the defendant? A. Yes.

"Q. 10. Did the defendant's automobile strike the plaintiff immediately after the plaintiff came from behind the parked automobiles? A. No."

The specifications of error involve...