Hughes v. Hudson-Brace Motor Company

• Decision Date: 10 June 1922
• Docket Number: 23,772
• Citation: 111 Kan. 397,207 P. 795
• Parties: EWART S. HUGHES, Appellee, v. HUDSON-BRACE MOTOR COMPANY, AND L. E. TANNER, Appellants
• Court: Kansas Supreme Court

207 P. 795

111 Kan. 397

EWART S. HUGHES, Appellee, v. HUDSON-BRACE MOTOR COMPANY, AND L. E. TANNER, Appellants

No. 23,772

Supreme Court of Kansas

June 10, 1922

Decided January, 1922.

Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. AUTOMOBILES--Collision at Street Intersection--Negligence--Petition States Cause of Action. Especially where a petition is not attacked by motion or demurrer, the fact that it does not use the word negligence or a derivative thereof does not prevent its statement of a cause of action for negligent injury, where the acts complained of are alleged to have been illegal and in violation of the defendants' obligations.

2. SAME--Ownership of Automobile--Admissions in Answer. An admission in the answer that the driver of a car at the time of its collision with another was engaged in demonstrating cars for its owner is held to dispense with any evidence on the subject.

3. SAME--Exceeding Statutory Speed Limit. The question whether the plaintiff in exceeding the statutory speed limit and in failing to see another car in time to prevent a collision was guilty of negligence contributing to his injury is held to have been one of fact, properly submitted to the jury.

4. SAME--Automobiles Approaching Street Intersection--Which Has the Right of Way? Where by ordinance a vehicle approaching a street intersection from one direction is given the right of way over one approaching it from another, the driver of an automobile from the disfavored direction is not required under all circumstances before attempting to cross to await the passage of every car he can see coming from the other direction which by any possible burst of speed might reach the crossing of their paths ahead of him. It is not negligence as a matter of law for a driver from either direction to undertake to cross the intersection ahead of a car which is at such a distance that he has ample time to get across provided the other does not exceed the highest speed he should reasonably anticipate. And it is held that in the present case the evidence warranted a finding that the defendants' car was coming so rapidly that the plaintiff in the exercise of due diligence in that regard underestimated its speed and reasonably believed that he had abundant time to cross until it was too late for him to do anything to avoid a collision.

5. SAME--Findings of Negligence--Not a Material Variance from Pleadings. Where in an automobile collision case a question is submitted to the jury calling for a statement of the character of the defendant's negligence, a reversal of a judgment in favor of the plaintiff is not required by the answer--"entering intersection on wrong side of street at excessive speed," although the defendant's being on the wrong side of the street was not pleaded nor submitted to the jury.

David F. Carson, and C. A. Miller, both of Kansas City, William G. Busby, Sam Sparrow, and A. Z. Patterson, all of Kansas City, Mo., for the appellants.

L. O. Carter, of Kansas City, for the appellee.

OPINION

MASON, J.:

Ewart S. Hughes was driving an automobile west on Washington avenue in Kansas City, Kan., while L. E. Tanner, who was in the employ of the Hudson-Brace Motor Company, was driving one belonging to that company north on Sixth street. The cars came together near the northwest corner of the intersection of these streets, the evidence being in conflict as to which struck the other. Hughes sued Tanner and the Motor Company for injuries received by him, the company asserting a counterclaim because of injury to its car. The plaintiff recovered a judgment and the defendants appeal.

1. Complaint is made of the overruling of a demurrer to the plaintiff's evidence and of a motion for a peremptory instruction in favor of the defendants on the ground that the petition failed to state a cause of action, inasmuch as it did not allege that Tanner's handling of the car he was driving was negligent. The pleading did not in so many words characterize his conduct as negligence, but it alleged that he drove at a high, dangerous and excessive rate of speed, to wit: forty-five or fifty miles an hour, disregarding his legal obligations and violating a city ordinance. The speed alleged would be unlawful because of the statute, which did not require to be pleaded. The omission of the term negligence or a derivative was immaterial. An allegation that a train was run at sixty miles an hour has been held not to charge negligence (Railway Co. v. Wheeler, 70 Kan. 755, 79 P. 673), but this is not true of a statement that an automobile was driven at a high, dangerous and excessive rate of speed in violation of the statute and an ordinance.

2. The same rulings are attacked by the defendant company on the ground that there was no evidence that Tanner at the time of the collision was engaged in its business. The petition alleged that at all times therein referred to he was employed by the company and engaged in demonstrating its cars and was so working and employed at the time the accident occurred. The company's answer contained an admission that he was "at the times mentioned in plaintiff's petition engaged in the sale and disposition of" its cars "and was at said times . . . employed by it and engaged in demonstrating and selling" its cars. We consider this admission as having eliminated the issue referred to and rendered the introduction of evidence thereon unnecessary.

3. The same rulings are also challenged on the ground that the undisputed evidence showed that the plaintiff was guilty of contributory negligence. The jury found that the plaintiff's car was going fifteen miles an hour. This was a violation of the statute restricting the speed of automobiles in city streets to twelve miles an hour and to six miles at intersections. (Laws 1917, ch. 74, § 5.) Whether this conduct contributed to the accident, however was a question for the triers of the facts. The plaintiff testified that he saw the defendants' car while it was still a block away, but did not look for it again until he was half way across Sixth street, when it was too late for him to prevent a collision. Whether this course amounted to contributory negligence was likewise a matter to be determined in the light of all the circumstances, including the speed of the defendants' car, which one witness estimated at...