Himmelwright v. Baker

• Citation: 82 Kan. 569,109 P. 178
• Decision Date: 11 June 1910
• Docket Number: 16,437
• Parties: E. H. HIMMELWRIGHT, Appellant, v. HATTIE M. BAKER, Appellee
• Court: United States State Supreme Court of Kansas

109 P. 178

82 Kan. 569

E. H. HIMMELWRIGHT, Appellant, v. HATTIE M. BAKER, Appellee

No. 16,437

Supreme Court of Kansas

June 11, 1910

Decided January, 1910.

Appeal from Sedgwick district court; THOMAS C. WILSON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. EVIDENCE -- Opinion Testimony -- Speed of an Automobile. A person injured upon a street crossing by an automobile, who sees it approaching him at a distance of ten or fifteen feet and who has frequently observed the passage of automobiles and other vehicles, and ridden in them, and made observations of their rate of speed, may give his opinion of the speed of the car at the time of the collision.

2. EVIDENCE Error Rendered Immaterial by Special Findings. In view of the explicit findings of the jury that the plaintiff failed to exercise due care for his own safety and that the defendant was not negligent, and all the circumstances proven, it is held, that the error in excluding the testimony referred to was not prejudicial.

3. PERSONAL INJURIES -- Contributory Negligence -- "Last Clear Chance" -- Instructions. Instructions relating to the doctrine of the "last clear chance" are examined, and the rule stated in Dyerson v. Railroad Co., 74 Kan. 528, is followed and applied.

John W Adams, and George W. Adams, for the appellant.

J. A. Brubacher, and James A. Conly, for the appellee.

OPINION

BENSON, J.:

This action was for damages caused by a collision with the defendant's electric automobile at a street crossing in Wichita. The plaintiff, Himmelwright, alleged that the automobile was negligently propelled against him, without signal or warning, and at a high and dangerous rate of speed. The defendant was driving her car eastward, approaching the crossing over which the plaintiff was walking southward, when the car struck and injured him. A city ordinance provided a limit upon the speed of automobiles of eight miles an hour, and it was alleged that the defendant was running her car at the rate of fifteen miles per hour, and that she was negligent in failing to control it or give any signal or warning after seeing the plaintiff in a dangerous position. The verdict was for the defendant.

Error is assigned upon the rejection of the plaintiff's testimony concerning the speed of the car at the time of the collision. He testified that the car was ten or fifteen feet from him when he first saw it; that it was running so fast he had no time to do anything, but that he tried to get away from it. He was then asked at what rate of speed it was running, and answered that it was fifteen miles an hour, but the answer was stricken out on the ground that it appeared that he did not have sufficient opportunity to form an opinion on the question of speed. The evidence was competent. An objection to such testimony goes to its weight rather than to its admissibility. (Railway Co. v. Holloway, 71 Kan. 1; Porter v. Buckley, 147 F. 140.)

A bystander, called by the plaintiff, who witnessed the occurrence and who appeared to have an opportunity for estimating the speed of the car, testified that it was fifteen miles per hour, while the defendant testified that it was four miles per hour.

The jury returned special findings, among which were the following: That 100 feet from the point of collision the speed of the automobile was five miles per hour; that it decreased from that point to four miles per hour when it struck the plaintiff; that there was nothing to prevent the plaintiff from seeing it when 200 feet from the point where it struck him; that he did not look for approaching vehicles or observe the automobile until nearly in contact with it and exercised no care to avoid the collision, but was proceeding with head bowed forward and cap pulled over his forehead, so as to shut off his vision to some extent; that he was looking to the pavement in front of him; that nothing in his appearance or conduct indicated an intention to cross in front of the automobile, and that if he had used ordinary care the collision would have been avoided. The jury also found that the defendant acted in an emergency--that a boy on a bicycle was in the path of the automobile, in dangerous proximity, about the same moment that the plaintiff came upon the crossing, just before the injury; that the fear of a collision with the bicycle caused the failure of the defendant to avoid the collision with the plaintiff; and that in this emergency she did not do or fail to do anything which a person of ordinary prudence would have done or failed to do in similar circumstances. These and other findings show that the jury found that the defendant was not negligent as charged, but that the plaintiff himself failed to exercise ordinary care for his...