Hibler v. Nordyke

• Decision Date: 14 July 1973
• Docket Number: No. 46873,46873
• Citation: 512 P.2d 485,212 Kan. 619
• Parties: George T. HIBLER, Appellant, v. Ray NORDYKE, Appellee.
• Court: Kansas Supreme Court

Page 485

512 P.2d 485

212 Kan. 619

George T. HIBLER, Appellant, v. Ray NORDYKE, Appellee.

No. 46873.

Supreme Court of Kansas.

July 14, 1973.

Syllabus by the Court

In an action by a pedestrian to recover for injuries resulting from negligence of the driver of an automobile, which action resulted in a verdict and judgment for plaintiff, the record is examined and it is held no reversible error has been shown.

Gwinn G. Shell, Garnett, argued the cause and was on the brief for the appellant.

Richard O. Skoog, Ottawa, argued the cause, and R. Michael Latimer, Ottawa, was with him on the brief for the appellee.

FROMME, Justice:

Plaintiff-appellant brought this action to recover for personal injuries arising from a pedestrian-car accident at a crosswalk in Ottawa, Kansas. Plaintiff, the pedestrian, sued for $9,500.00. Defendant contended the brakes on his car failed as he attempted to stop at a stop sign. Although no journal entry of judgment or verdict of the jury is included in the record on appeal we are informed by the parties that a trial resulted in a general jury verdict for $1,596.65.

On appeal the plaintiff makes the single contention that the trial court erred in not permitting plaintiff to introduce evidence to establish loss of earning capacity. The plaintiff was engaged in selling match books, stationery, ball-point pens, yardsticks and other novelties. The record indicates some evidence was admitted as to gross commissions previously earned together with testimony by plaintiff that his traveling expenses 'ran right at $8 a day.'

Where, as here, the business does not rest upon the investment of substantial amounts of capital or upon the labor of others but involves only the personal endeavors of the injured claimant, the decline in profits following the injury is one measure of the earning ability of the plaintiff and evidence of such loss of income is admissible if it meets the test of reasonable certainty. (Railway Co. v. McLaughlin, 73 Kan. 248, 259, 84 P. 989; Shepherdson v. Storrs, 114 Kan. 148, 217 P. 290; Annotation 45 A.L.R.2d 345, 352.)

It is not clear from the record presented in this court just what was the nature or prejudicial effect of the limitations placed by the trial court upon the personal testimony of plaintiff regarding his prior earnings.

In Lightcap v. Mettling, 196 Kan. 124, 409 P.2d 792, it is said:

'K.S.A. 60-261 provides that no error in either the admission or exclusion of evidence and no error or defect...