Hogan v. Santa Fe Trail Transp. Co.

• Decision Date: 10 December 1938
• Docket Number: 33968.
• Citation: 85 P.2d 28,148 Kan. 720
• Parties: HOGAN v. SANTA FE TRAIL TRANSP. CO. el al.
• Court: Kansas Supreme Court

85 P.2d 28

148 Kan. 720

HOGAN v. SANTA FE TRAIL TRANSP. CO. el al.

No. 33968.

Supreme Court of Kansas

December 10, 1938

Syllabus by the Court.

In motorist's action for injuries sustained in collision with truck which occurred on motorist's side of highway evidence whether motorist who was driving on left side of highway instead of snow-covered right side of highway moved over to right side in sufficient time for truck to pass, and whether truck driver exercised proper degree of care before motorist started to turn to the right side, and whether both motorist and truck driver exercised the proper degree of care after motorist started to turn to the right side, was for jury.

A plaintiff could not complain of the wording of some of the special questions submitted to the jury where no objection was made thereto at the time of the trial.

Appellants could not complain that certain instructions were not adequate where fuller and more complete instructions were not requested and objection was not made to the instructions which were given. Gen. St.1935, 60-2909.

In motorist's action against corporate owner of truck and its insurance carrier for injuries sustained in collision with truck, owner and insurance carrier could not complain concerning absence of last clear chance instruction, where instructions given fairly covered the issues joined by pleadings and no complaint was made at the time of trial on ground that instructions were inadequate as to any issue urged and no last clear chance instruction was submitted by owner and insurance carrier.

Where special verdict was in harmony with general verdict for the plaintiff in so far as damages in some amount was concerned judgment for plaintiff was proper.

A violinist's loss of enjoyment caused by personal injuries making violin playing impossible was too speculative and conjectural and too difficult of measurement to form a sound basis for assessment of damages recoverable by violinist.

1. "Loss of enjoyment" resulting to a musician (a violinist), by reason of a personal injury which incapacitated her to play the violin, is not a proper element of damages, such damages being too conjectural and speculative in their nature and impossible or too difficult of measurement to form a substantial basis for recovery.

2. The record in an action for property damage and personal injuries resulting from an automobile collision, examined and Held (1) The demurrer to plaintiff's evidence was properly overruled; (2) the objections to special questions submitted and to instructions given cannot be sustained; (3) the special verdict did not require judgment for the defendants (4) the judgment must be reduced in the amount of $4,000. in part.

Appeal from District Court, Geary County; C. M. Clark, Judge.

Suit by J. Abbie Clarke Hogan against the Santa Fe Trail Transportation Company and another to recover for property damages and personal injuries resulting from a collision of motor vehicles. Judgment for the plaintiff, and the defendants appeal.

Affirmed as modified.

WEDELL and SMITH, JJ., dissenting

C. L. Hoover, of Junction City, and John W. Blood, and F. W. Prosser, both of Wichita, for appellants.

James V. Humphrey and Arthur S. Humphrey, both of Junction City, for appellee.

WEDELL Justice.

This was an action to recover for property damages and personal injuries resulting from a collision of motor vehicles. Judgment went for plaintiff, and the defendants, the Santa Fe Trail Transportation Company, a common carrier, and its insurer, the Standard Accident Insurance Company of Detroit, Michigan, appeal.

Numerous assignments of error are alleged. We shall first treat the contention the demurrer to plaintiff's evidence should have been sustained. This requires a review of plaintiff's evidence. Briefly stated the material portion thereof was substantially as follows: Plaintiff was traveling from Junction City to Pittsburg. The accident occurred in the daytime of March 13, 1937, on Federal Highway No. 59, after plaintiff had left Princeton. This highway runs generally in a northerly and southerly direction, but the accident occurred on a mile stretch of road which runs east and west. This mile of road was on a level tract of land. It was snowing. The wind was from the north and it had driven the snow from the north edge of the pavement with the result that side was mostly free from snow. The snow had drifted into the south ditch and had also covered the south side of the highway sufficiently to make driving there difficult. Plaintiff could see the entire distance of the one mile stretch. When she entered on that stretch no other vehicle was on it. Observing this condition she drove on the north or on her left side of the highway. After proceeding about a half mile she observed the truck of the defendant transportation company coming west at the end of the mile stretch. She then again tried the south or right-hand side of the road and again found driving difficult there and returned to the north side until she got nearer the truck. She continued to watch the truck and decided to turn back to the south side in time to permit the truck to pass. While the truck was on the north side and 200 feet east she turned to cross to the south side. When she turned southeast the truck was still on the north side of the road. By reason of the snow-covered condition on the south side she was obliged to give her attention to that side of the road as well as to the truck. This she did. Her testimony was:

"A. I had to keep one eye or the corner of my eye on the edge of that pavement, on the north side of that pavement all the time.

"Q. Well, that is what you did? A. But I saw the truck. I never missed it. I had the truck in my mind, in my eye all the time."

In attempting to reach the south side she drove 2 feet over on the right shoulder. After getting over to the south side and "straightening out", she looked up and the truck was about 30 feet away. The truck was, in her own words, "coming down on my side of the pavement, right at me, diagonally across, clear across the pavement, so that I couldn't get by it on either side." Defendant's vehicle consisted of a truck and trailer. Plaintiff was driving her car about 25 miles per hour. The road was snowy and slippery. The truck was being driven at least 35 miles per hour.

The testimony of A. N. Affolter, a farmer and filling station operator, who lived just around the bend at the east end of this mile stretch, testified in substance: He went to the place of the accident a half or three-quarters of an hour after it occurred. In that time there was no change in the weather conditions. When he got to the slab his view was unobstructed to the scene of the accident. He could see the road the entire distance of the mile stretch. When he reached the place of the accident the front wheels of the truck were in the south ditch, and the hind wheels of the semi-trailer were partly on the slab. The truck was facing southwest. The position of plaintiff's car had been changed by that time.

There is no dispute, however, about the fact that the collision occurred on the south shoulder of the highway. There is no question concerning the fact there was property damage and that there were personal injuries. The extent of the damage will be treated later.

Did the court err in overruling defendants' demurrer to plaintiff's evidence? On this question the trial court adopted plaintiff's contention that the question of the truck driver's negligence and plaintiff's contributory negligence were jury questions. Plaintiff's contention was in substance: Considering the conditions of the road she had a right to travel on the north side providing she moved over in sufficient time to permit the truck driver to pass; the latter knew or should have known the conditions of the road, and the difficulty of traveling on the south side; he should have slowed down when he saw plaintiff's difficulty in traveling on the south side; the truck driver had the right to assume plaintiff would endeavor to reach the south side in time for him to pass; plaintiff turned to the south side while the truck driver was still on the north side of the road and when 200 feet away; the truck driver could have passed on the north side; if the truck had been under proper control and the driver of the truck had kept his view on plaintiff he would have seen the plaintiff turn to the south and could have avoided running into her car on the south shoulder of the highway; plaintiff was guilty of no contributory negligence but in any event the question was for the determination of the jury.

The pertinent statute now touching the subject of travel on a certain side of the road, namely, section 37, chapter 283 Laws of 1937, was not in effect at the time of the collision and need not be considered. That a driver so long as he has the road to himself, for a distance as far as he can see, may travel on any portion thereof, has been definitely determined. Gardner v. Leighton, 144 Kan. 335, 338, 58 P.2d 1111, and cases there cited. Whether plaintiff, under all the circumstances, moved over in time for defendant to pass and whether the driver of the truck exercised the proper degree of care before plaintiff started to turn south and whether both parties exercised the proper degree of care after plaintiff had started to turn south, cannot be said to constitute questions which can be answered as a matter of law. They were proper questions for the determination of the jury. Touching the demurrer defendants stress mostly the alleged contributory negligence of the plaintiff. In numerous cases we have said in substance what was again recently said in Jones v. McCullough, 148 Kan. 561, 83 P.2d 669, as...