Holt v. Bills

• Decision Date: 09 December 1961
• Docket Number: No. 42355,42355
• Citation: 366 P.2d 1009,189 Kan. 14
• Parties: Sylvan W. HOLT, Appellant, v. Frank John BILLS, Appellee.
• Court: Kansas Supreme Court

Page 1009

366 P.2d 1009

189 Kan. 14

Sylvan W. HOLT, Appellant, v. Frank John BILLS, Appellee.

No. 42355.

Supreme Court of Kansas.

Dec. 9, 1961.

Syllabus by the Court.

The record in an appeal from the order of the trial court granting judgment notwithstanding the verdict for defendant in an action based upon an automobile collision is examined, and the finding of the jury convicting plaintiff of contributory negligence is found to be binding upon this court and the special findings being consistent with each other and contrary to the general verdict, the judgment for defendant must stand (G.S.1949, 60-2918).

John A. Bausch, Topeka, argued the cause, and L. M. Ascough, E. Edward Johnson and Wayne T. Stratton, Topeka, were with him on the briefs, for appellant.

William Hergenreter, Topeka, argued the cause, and Wendell L. Garlinghouse and Warren W. Shaw, Topeka, were with him on the briefs, for appellee.

JACKSON, Justice.

This appeal arises from an action growing out of an automobile collision which occurred on North Kansas avenue in the city of Topeka. The case was tried to a jury which returned a verdict for the plaintiff Holt and answered certain special questions. Upon the motion of the defendant Bills, the district court ordered a judgment in favor of the defendant notwithstanding the general verdict upon the answers to the special questions. Plaintiff appeals urging that the trial court was in error in making its above order.

The general facts leading to the automobile collision can be shortly stated. On August 22, 1959, the plaintiff driving a Henry J car turned off highway No. 24 on to North Kansas avenue driving south. At about the same time, near three in the afternoon on a clear day, defendant was driving north in the same street. From the evidence introduced, these two cars were the only vehicles using the street in that vicinity at the time. Plaintiff testified that he noticed defendant's Chevrolet car approaching on perhaps three occasions as he drove down the street. When plaintiff had arrived opposite Cramer's grocery, he made a left turn in the middle of the block intending to drive into the parking lot of the grocery. This left turn, of course, caused him to cross the north bound lane of traffic and defendant's car struck plaintiff's car in the rear quarter of the right side behind the right door.

The jury's general verdict in favor of plaintiff was for the sum of $2,500. They also answered the following eight special questions as herein set out:

'1. Do you find from the evidence the defendant was guilty of negligence? A. Yes.

'2. If you answer the foregoing question in the affirmative then state of what such negligence consisted. A. Excessive speed.

'3. Do you find from the evidence the plaintiff was guilty of negligence? A. Yes.

'4. If your answer to the foregoing question is in the affirmative then state of what such negligence consisted. A. Inattentive driving. Failure to watch and judge the speed of on-coming car.

'5. Did the plaintiff, before starting to make a left turn into Cramer's Grocery Store give a signal of his intention to make a left turn? A. Evidence not conclusive.

'6. If you answer question five in the affirmative, then state the distance plaintiff continuously gave such signal before starting to make the left turn into the Cramer Grocery Store. A.

'7. If you answer question five in the affirmative, then state what method the plaintiff used in giving the signal of his intention to turn left. A.

'8. Did plaintiff see the car of defendant approaching from the South before plaintiff began to make a turn into Cramer Grocery Store? A. Yes.'

Following the dismissal of the jury, plaintiff moved for a new trial and also moved to set aside the answers to questions 3 and 4. Defendant filed a motion for judgment notwithstanding the verdict. After full consideration of the above motions, the trial court overruled the plaintiff's motions and granted defendant's motion entering judgment for defendant.

Turning now to the answers to the special questions to examine the trial court's ruling thereon, we observe first the answer to question 5, in which the jury found the evidence inconclusive as to whether plaintiff signaled before making a left turn. In view of the provisions of G.S.1949, 8-547, it was the duty of the plaintiff to show that he had given a proper signal, and the jury's failure to be convinced by the evidence, which was in fact inconclusive, had the effect of a finding that no signal had been given, see cases cited in Hatcher's Digest, Trial §§ 310 and 311; West Kansas Digest, Trial k365(1). Thus, we have a finding that plaintiff was guilty of at least one act of contributory negligence in making the left turn in the middle of the block.

Plaintiff states in attempting to avoid the jury's answers to questions 3 and 4, supra, that: 'The decisions in Kansas have uniformly held that negligence to bar a plaintiff's recovery must contribute to and be a proximate cause of the injury complained of (citing Hutchens v. McClure, 176 Kan. 43, 269 P.2d 473).' There can be no doubt concerning the rule stated, and a corollary of that rule is that any negligence of the defendant which is sufficient to make him responsible for an accident must have been a proximate cause of such accident. The court's instructions are not shown in the record before us, and no complaint is made concerning them. Therefore, we must assume that the jury was properly instructed upon the issue of proximate cause.

The real burden of plaintiff's argument is that none of the questions asked by the court refers to proximate cause, and the plaintiff would have this court now hold that all special questions must specifically limit the findings of negligence by stating the rule as to proximate cause in each question. Plaintiff attempts to find some encouragement from the case of Taylor v. Johnson, 186 Kan. 561, 352 P.2d 436. Plaintiff admits that the Taylor case does not so hold. It will be seen that in that case we were discussing only a special question submitted to the jury in which the jury was asked about whether plaintiff had been guilty of any negligence 'which caused or contributed to the collision.' There we simply said, in making a quick answer to an argument about causation, that the quoted words amounted to a definition of proximate cause. We would also direct attention to a sentence of the opinion in the Taylor case which the plaintiff may have overlooked. Near the close of the argument on causation, we said: 'Obviously, the jury understood the judge to be referring to the action of the plaintiff at the scene of the accident.' (p. 565, 352 P.2d 439.)

It would indeed be a new rule to hold now that every special question on negligence must specifically include a statement as to such negligence being the proximate cause of the injury. The jury was instructed upon causation and the court is asking about the occurrences at the scene which caused the injury. No objection to the form of the questions is shown to have been made in the court below. The following cases may be cited as showing special questions which did not raise the matter of causation under such circumstances and which were treated as entirely sufficient: Eastman v. Atchison, T. & S. F. Railway Co., 102 Kan. 400, 171 P. 1; Hausam v. Poehler, 120 Kan. 119, 242 P. 449; Mitchell v. Foran, 143 Kan. 191, 53 P.2d 490; Jelf v. Cottonwood Falls Gas Co., 160 Kan. 112, 160 P.2d 270; Jelf v. Cottonwood Falls Gas Co., 160 Kan. 713, 178 P.2d 992; Morrison v. Hawkeye Casualty Co., 168 Kan. 303, 212 P.2d 633; Knoche v. Meyer Sanitary Milk Co., 177 Kan. 423, 280 P.2d 605; Cosby v. Doskocil, 180 Kan. 367, 303 P.2d 1107; Critchfield v. Ernzen, 181 Kan. 284, 310 P.2d 930.

The above collection of cases is not intended to be complete and may be increased with ease, we believe. It would be strange for this court to hold contrary now to the above authorities and in effect say the special questions discussed in those cases were insufficient.

We all agree that under the rules of procedure in this jurisdiction nothing is to be presumed in favor of the special findings, and that the general verdict can not be set aside unless the special findings, being consistent with each other, are contrary to the general verdict (Unruh v. Kansas Turnpike Authority, 181 Kan. 521, 313 P.2d 286, and cases cited; see also G.S.1949, 60-2918).

Suppose we look at the answer given by the jury to question No. 4 remembering that as in most of the above cases, the court is asking about acts done 'at the scene of the collision.' Can anyone really believe that the answer did not state acts of negligence which, if true, were not a proximate cause of the accident?

The jury answered that the plaintiff was guilty of: 'Inattentive driving. Failure to watch and judge the speed of on-coming car.' That is, the jury is saying that the plaintiff merely saw the on-coming car, but failed to look carefully enough to see that it was approaching at a speed of sixty miles per hour, and that he made a left turn--without signaling--into the wrong lane of traffic, closely in front of the speeding car.

We might also remember that a sergeant of the Topeka police department testified that defendant laid down 115 feet of skid marks before he hit plaintiff's car and 54 feet after the collision.

We might also note that plaintiff's own testimony--plaintiff being a truthful man--would seem to support the jury's answer to question No. 4. The only fortunate thing about the accident appears to be that neither plaintiff nor his small son who was riding with him seems to have been seriously injured.

Plaintiff makes certain other arguments about the answers to the jury's questions and we have carefully considered them. For the most part, the very cases cited by plaintiff we think show the unavailability of the points stated. We see no reason to discuss the other points.

The answers to the special...