Harvey v. Cole
| Decision Date | 09 December 1944 |
| Docket Number | 36169. |
| Citation | 159 Kan. 239,153 P.2d 916 |
| Parties | HARVEY et ux. v. COLE. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
In action against 17 year old boy for wrongful death of 9 year old boy who was struck by automobile driven by defendant, an instruction that degree of care required by defendant and by decedent was that which is ordinarily exercised by children of same age, intelligence, education and experience under similar circumstances and that a child, at least until he reaches later years of his minority, is not bound to exercise same degree of care for his safety as required of an adult was not prejudicial to plaintiff because defendant was a holder of a driver's and chauffeur's license.
In action against 17 year old boy for alleged wrongful death of 9 year old boy who was struck by automobile driven by defendant, instruction as to degree of care required by defendant and by decedent was not objectionable on ground that it erroneously placed decedent and defendant in same class.
Instructions in an action for death of 9 year old boy who was struck by automobile, were not objectionable on ground that they injected issue of defendant's negligence after he entered intersection, which was not properly in the case.
Plaintiffs could not contend on appeal that upon facts as shown defendant was guilty of negligence as a matter of law where there was no motion by plaintiffs for a directed verdict and no trial contention that defendants were negligent as a matter of law.
Ordinarily instructions not objected to at trial become the "law of the case" and may not be reviewed upon appeal.
1. In an action against a minor, seventeen years old, to recover damages for the death of a nine year old boy resulting from an automobile collision, the fact that the defendant was a holder of a driver's and a chauffeur's license was not sufficient to make improper and prejudicial to the plaintiff an instruction to the jury that the degree of care and caution required by the defendant and by the deceased child is that which is "ordinarily exercised by children of the same age, intelligence, education and experience under similar circumstances" and that "a child, at least until he reaches the later years of his minority, is not bound to exercise the same degree of care for his safety as is required of an adult."
2. Ordinarily instructions to a jury not objected to at the trial become the law of the case and may not be reviewed upon appeal.
3. Record examined in an action to recover damages for the wrongful death of a child and no error found.
Appeal from District Court, Shawnee County; George A. Kline, Judge.
Action by George Harvey and Mrs. George Harvey against Wilbur Cole to recover for alleged wrongful death of plaintiffs' nine year old boy. From a judgment for defendant, the plaintiffs appeal.
Robert Stone, of Topeka (James A. McClure, Robert L. Webb, Beryl R Johnson, and Ralph W. Oman, all of Topeka, on the briefs), for appellants.
O. B. Eidson, of Topeka (T. M. Lillard, Philip H. Lewis, and James W. Porter, all of Topeka, on the briefs), for appellee.
This is an appeal from a judgment for the defendant in an action to recover damages for the wrongful death of a nine year old boy. The only errors assigned relate to the court's instructions to the jury.
In order to avoid a lengthy transcript of the testimony the parties agreed upon a statement of the facts developed at the trial. A shortened summary of the facts, taken from the stipulation, will suffice for our purposes. On October 16, 1941, Mrs. L. A. Boley, who lived south of Berryton, Kansas, went to Berryton in her car to get her two sons who were attending high school there. On their way home one of the sons drove and they stopped to pick up two of the older children of Mr. and Mrs. George Harvey, the appellants. Farther on they picked up three of the younger children of the Harveys, one of them being David, who was nine years old. They proceeded south to an intersection which was about a mile and a half west of the Harvey home. The Boley car pulled off on the west side of the highway on which it was traveling and stopped just north of the traveled portion of the east and west highway. It was then facing the southwest, with its left front wheel about seven feet and the left rear wheel about six feet from the west line of the traveled portion of the north and south highway. Stated in another way, the Boley car pulled off on the right side of the highway so that the left side of the car was six or seven feet from the west line of the traveled part of the highway.
Wilbur Cole, appellee here, who was seventeen years old and a student at the Berryton school, left the school soon after the Boley car had left. He was driving a car, and was a holder of both a driver's and a chauffeur's license. He saw the Boley car stop and pick up the two older Harvey boys, whom he knew. He knew where the Harveys lived and knew that there were some younger Harvey children but he did not know them and he did not know that the Boley car later stopped and picked up these younger children. About one hundred and fifty yards north of the intersection referred to there was a hill and as Wilbur reached the top of the hill he could see this intersection, and when he was about halfway from the top of the hill to the intersection he saw the Boley car standing still on the west side of the highway and saw people getting out on the west side of the car. At the top of the hill he had been traveling at thirty-five miles an hour. He slackened his speed and was going about twenty-five or thirty miles an hour as he was passing the Boley car. He did not see any small children alighting from the car.
As he drove along he was looking south-- the direction in which he was going--and just before he reached a point opposite the rear end of the Boley car the roadway to the south was clear and unobstructed. He was then traveling in about the center of the highway, the traveled part of which was thirty feet wide. By mathematical calculation it thus appears that the center of his car was about twenty-one or twenty-two feet from the west side of the Boley car standing to the right of the highway.
David Harvey had been sitting on the lap of an older brother, in the back seat. When the right rear door was opened David got out and the older Harvey boys then got out on the same side and were standing there thanking Mrs. Boley for the ride when David ran around the front or south end of the Boley car and then ran out into the traveled part of the north and south highway. When Wilbur saw the little boy run out he applied his brakes as quickly as he could and swerved his car to the left in an effort to avoid hitting him, but David came into collision with the outside of the right front fender and was knocked a considerable distance to the west and south. As a result of his injuries David died while being taken to the hospital.
This action was filed by the parents of David on September 30, 1942, about a year after the accident. In their petition they alleged that Wilbur (Italics supplied.)
In his answer Wilbur alleged in substance that immediately prior to the accident he was driving his car in a prudent and careful manner; that he saw people getting out of the west side of the Boley car and standing there in a place of safety; that David ran out suddenly from around the front end of the Boley car and when he first came into view the front end of his own car was not more than eight feet from the point where the collision occurred; that by the exercise of every proper degree of care he was unable to stop or turn his car to the left sufficiently to prevent the collision.
The case was tried to a jury which brought in a general verdict for the defendant and answered special questions as follows:
To continue reading
Request your trial
-
Nielsen v. Brown
...this case was inapplicable where an employer was sought to be charged vicariously for his minor servant's negligence. Harvey v. Cole, 159 Kan. 239, 153 P.2d 916 (1944), adopted the reasoning of the Charbonneau case where the question was upon the contributory negligence of a seventeen-year-......
-
Dellwo v. Pearson
...v. McNeil, 1952, 92 Ohio App. 458, 110 N.E.2d 714; Hill Transp. Co. v. Everett, 1 Cir., 1944, 145 F.2d 746. Also see, Harvey v. Cole, 1944, 159 Kan. 239, 153 P.2d 916.14 Briese v. Maechtle, 146 Wis. 89, 130 N.W. 893, 35 L.R.A.,N.S., 574; Hoyt v. Rosenberg, 80 Cal.App.2d 500, 182 P.2d 234, 1......
-
Williams v. Esaw, 47228
...instructions concerning the care required of a minor in the operation of a motor vehicle; (3) certain language contained in Harvey v. Cole, 159 Kan. 239, 153 P.2d 916, is disapproved so far as it relates to the standard of care applicable to a minor in the operation of a motor Gerald W. Sco......
-
Reinsch v. Cities Service Gas Co.
...1031; Cruse v. Dole, 155 Kan. 292, 124 P.2d 470; Sams v. Commercial Standard Ins. Co., 157 Kan. 278, 287, 139 P.2d 859 and Harvey v. Cole, 159 Kan. 239, 153 P.2d 916. Numerous other decisions to the same effect can be found by reference to Hatcher's Kansas Digest, Appeal & Error, §§ 344, 35......