Hill v. Southern Kansas Stage Lines Co.

• Decision Date: 25 January 1936
• Docket Number: 32418.
• Citation: 143 Kan. 44,53 P.2d 923
• Parties: HILL v. SOUTHERN KANSAS STAGE LINES CO. [*]
• Court: Kansas Supreme Court

53 P.2d 923

143 Kan. 44

HILL v. SOUTHERN KANSAS STAGE LINES CO. ^[*]

No. 32418.

Supreme Court of Kansas

January 25, 1936

Syllabus by the Court.

On demurrer to evidence, court may not compare or weigh evidence which is entitled to full credence and to be considered in its most favorable light towards party which adduced it.

In action for death of filling station operator, who, in accordance with usual custom, was flagging approaching bus to stop for passengers, when he was struck by bus which was proceeding on left side of highway at rate of fifty miles per hour, bus driver's negligence held for jury.

In determining whether plaintiff was contributorily negligent as matter of law, all testimony favorable to plaintiff must be accepted as true, and if facts are such that reasonable minds would reach different conclusions therefrom, question must be submitted to jury.

One who in sudden emergency acts according to his best judgment or who, because of want of time in which to form judgment, omits to act in most judicious manner, is not chargeable with negligence.

In action for death of filling station operator who, in accordance with usual custom, was flagging approaching bus to stop for passengers when operator was struck by bus which was traveling at rate of fifty miles per hour on left side of highway, deceased's contributory negligence and proximate cause held for jury.

Party who fails to request trial court to have jury give more specific or complete answer to special question cannot complain that answer is not sufficiently complete or specific.

In action for death against bus company which was required to carry insurance under which insurer would be liable in action for damages without making company party defendant, in which action no mention of insurance was made, jurors' discussion of insurance held not reversible error where no complaint was made that verdict was excessive.

To make alleged prejudicial remarks of trial court reviewable, timely exception must be taken thereto and must be called to attention of trial court on motion for new trial.

1. On a demurrer to evidence, the court may not compare or weigh evidence. Tested by demurrer, the evidence is entitled to full credence and to be considered in its most favorable and propitious light towards the party which adduced it. Rule applied, and held, defendant's demurrer was properly overruled, under evidence narrated in the opinion.

2. In determining whether as a matter of law a plaintiff is guilty of contributory negligence which precludes his recovery for injuries sustained, all of the testimony favorable to the plaintiff must be accepted as true, and if the facts are such that reasonable minds reach different conclusions thereon the question must be submitted to the jury and cannot be determined by the court as a matter of law.

3. In determining whether deceased was guilty of contributory negligence, rule followed that one who in a sudden emergency acts according to his best judgment or who, because of want of time in which to form a judgment, omits to act in the most judicious manner, is not chargeable with negligence.

4. A party who fails to request the court to have the jury give a more specific or complete answer to a special question cannot complain, on appeal, that the answer is not sufficiently complete or specific.

5. Where, in a suit against a common carrier which under the law is required to carry insurance, and the insurance company would be liable in an action for damages, without making the common carrier a party defendant, and no mention of insurance is made by any one in the course of the trial and the subject of insurance is referred to by some of the jurors in their deliberation, and no complaint was or is made concerning an excessive verdict, held, such discussion by the jury under the circumstances in this case, does not justify reversal of the verdict.

6. In order to make alleged prejudicial remarks of trial court reviewable, timely exception must be taken thereto and must be called to attention of trial court on motion for new trial.

Appeal from District Court, Marion County; Cassius M. Clark, Judge.

Action by Ida Pearle Hill, administratrix, against the Southern Kansas Stage Lines Company. From a judgment for plaintiff defendant appeals.

J. W Blood and F. W. Prosser, both of Wichita, Braden C. Johnston, of Marion, and D. M. Ward, of Peabody, for appellant.

W. H. Carpenter and John E. Wheeler, both of Marion, for appellee.

WEDELL Justice.

This was an action by a widow as administratrix for damages on the ground of negligent operation of a bus, resulting in the death of her husband.

Plaintiff recovered, and defendant appealed. One of appellant's contentions is the trial court erred in overruling its demurrer to appellee's evidence. This contention requires a review of appellee's evidence. The pertinent portions thereof are:

James A. Hill, husband of appellee, was fatally wounded at Admire Junction, by one of appellant's passenger buses. At the time of the accident, deceased was operating a filling station, lunch counter and fixing tires at Admire Junction. Appellant's stage, when flagged, stopped there to pick up passengers. For some period of time deceased, under arrangements with one of appellant's bus drivers, had flagged the stage for appellant when passengers desired to board it. The bus driver had left a red flag with deceased for this purpose. It was in connection with flagging the stage on the night of September 4, 1933, that deceased was fatally injured. Admire Junction is on highways 22 and 11, north of Emporia. The junction is formed by United States highway 50, running east and west, and highways numbered 22 and 11, running north and south. About 500 feet south of highway 50, highway 22 leaves or curves off from highway 22 and 11, and runs northeast into highway 50, and highway 11 continues north from the point where highway 22 curves off from highway 22 and 11, intersecting highway 50; there is also a curve leaving highway 11, north of highway 50, which curves and runs southeast into highway 50. Between the point where highway 22 leaves highway 22 and 11 and joins highway 50, there is a triangular piece of ground referred to throughout the trial as "the triangle." This triangle was referred to by some of the witnesses as "the safety zone." (The triangle is not designated as a safety zone, and the trial court rightly instructed the witnesses not to refer to it as such.) The triangle is covered with gravel and is not a part of the regularly used highway. The width of the curve is 30 feet between the fences and the traveled part of the curved road or bituminous mat is 26 feet. Highway 22 and highway 11, coming from the south, comes down a hill from the south to about the point where highway 22 curves off of highway 22 and 11, to make the junction with highway 50, running east and west. These three roads were covered with a bituminous mat. From the junction of these roads highway 50 continues east. The space covered by the bituminous mat at the junction just east of the triangle is about 60 feet in width. The curve and highway 50 were fairly smooth and level at the time of the accident. The triangle is about 30 feet in width at the west end and runs out to a point at the east end. The triangle is northwest of the curve.

The filling station of deceased was located to the south and east of the curve. The east side of the filling station is approximately due south of the east point of the triangle. A relative position of these roads is shown by a drawing here inserted:

(Image Omitted)

The drawing is not presented as an accurate reproduction, but solely for illustrative purposes, and in order to enable the reader to more readily visualize the general situation. The filling station pumps are about 26 feet from the edge of the mat.

Deceased in the past had always used the triangle as a signaling point for appellant's buses. On this particular occasion he had done likewise and was standing either on the triangle or on the edge of it, while waving the flag. The entire curve and road to the north was lighted by the lights from the filling station. He could be seen on the triangle at night by the driver of a vehicle coming from the south at a point farther than 225 feet south of the triangle. The curve was 26 feet wide. The bus was negotiating the curve on the left or northwest side, at fifty miles an hour. It did not stop after striking deceased until it had traveled about three times its length. The daughter of deceased testified:

"Q. After that, Lola, what did your father do? A. He took the flag and walked out to this triangle.

"Q. Now can you point about where he was? A. Well, he came out here across from in here and he stood right at the edge of this safety zone or triangle here (indicating)." (Tr. 166.)

"Q. Which side of the road was that bus coming on? A. It was on the left hand side when I seen it.

"Q. Would that be the south side of the road or the northwest side of that road, of 22? A. Well, it would be the northwest side.

"Q. Just show on there where it would be. A. Well, it would be right along here on this side (indicating).

"Q. What was your father doing at the time that--could you see your father? A. Yes, sir.

"Q. And what was he doing, Lola? A. He was waving the flag up and down.

"Q. Which way was he facing? A. He was facing the southeast.

"Q. Just show the jury how his arm was. A. Just as the bus hit him, he had his arm up.

"Q. Did you see the bus strike him? A. Yes, sir." (Tr. 166, 167.)

The daughter testified concerning where her father was standing before he crossed the highway. She said: "She couldn't say just exactly where he was standing, but he was...