Jarboe v. Pine

• Decision Date: 09 December 1961
• Docket Number: No. 42398,42398
• Citation: 189 Kan. 44,366 P.2d 783
• Parties: Thomas Wade JARBOE, Appellant, v. Velma Ellen PINE, Appellee.
• Court: Kansas Supreme Court

Page 783

366 P.2d 783

189 Kan. 44

Thomas Wade JARBOE, Appellant, v. Velma Ellen PINE, Appellee.

No. 42398.

Supreme Court of Kansas.

Dec. 9, 1961.

Syllabus by the Court

1. The record in a damage action involving the collision of two automobiles at an open intersection of two city streets, where the jury returned a verdict for the defendant upon special findings of contributory negligence pursuant to which judgment was entered, is examined on appeal, and held: The evidence is sufficient to sustain the findings of contributory negligence, and the order of the trial court denying the motion for a new trial was not an abuse of the exercise of its power of discretion.

2. By the provisions of G.S.1959 Supp. 8-5,102, a driver of a motor vehicle shall when reasonably necessary to insure safe operation give audible warning with his horn. Under this statute and the facts and circumstances presented by this case, as more particularly set forth in the opinion, whether it is necessary for the driver of a motor vehicle to sound his horn to insure the safe operation thereof is a question of fact for the jury and not a question of law for the court.

3. The driver of a motor vehicle upon a public street or highway, even though he be in law the favored driver, or the driver with the right of way, and even though he has the right to assume others traveling on the public street or highway will comply with the obligation imposed upon them, is not absolved from the consequence of his own independent negligent acts.

Geo. K. Melvin, Lawrence, was on the briefs for appellant.

Richard A. Barber, John A. Emerson and Fred N. Six, Lawrence, were on the briefs for appellee.

SCHROEDER, Justice.

This is an action to recover for personal injury and property damage arising from an intersection collision between two automobiles. The jury found the plaintiff guilty of contributory negligence and returned a verdict for the defendant whereupon the trial court entered judgment. Appeal has been duly perfected by the plaintiff from such judgment and the order overruling his motion for a new trial.

The basic question presented is whether the record discloses sufficient evidence to sustain the jury's finding of contributory negligence.

The appellant (plaintiff below) was driving his automobile west on 12th Street in the City of Lawrence, Kansas, and the appellee (defendant below) was driving her automobile north on New York Street, when they collided at an intersection formed by these two streets. They collided at a point approximately 2 feet and 6 inches west of the center line of the intersection in the appellant's lane of traffic. In other words, the collision occurred in the northwest quadrant of the intersection with the appellee's vehicle in the wrong lane of traffic, when it struck the appellant's vehicle (entering the intersection from the right) on the left rear fender. The appellant was in the intersection when the appellee entered. It is not clear from the evidence that the appellee saw the appellant's vehicle before the collision. The appellant testified when he first looked he could see about 50 to 75 feet south and did not see the appellee's automobile; and that he was probably 25 or 30 feet east of the center of the intersection when he first looked to the south and saw the appellee's vehicle (from the east edge to the center of the intersection is 15 feet). When asked how far south of the center of the intersection the appellee's vehicle was when he first saw it, he answered:

'Well it would be, that is hard to say, I don't know; anywhere from 50 to 60 feet I suppose.'

He further admitted he first saw the appellee's vehicle just as he was entering the intersection. Both drivers testified they were driving approximately 20 miles per hour, and there was no evidence that either of the drivers had applied the brakes. The accident occurred at 10:00 o'clock in the morning on a cloudy day. The street was surfaced with brick and it was dry.

A police officer testified the intersection was one 'where you have got to slow down like all intersections, as cars park there whether north, south, west, or east, as cars are always parked there.'

A licensed civil engineer, after making a study of the intersection as to the visibility of drivers approaching the intersection from the position of the appellant's vehicle, testified that parked vehicles at the intersection would not affect the visibility in the direction from which the appellee was approaching, and at any point within 50 feet east of the intersection, an automobile approaching from the south could be seen for more than 150 feet.

In answer to special questions the jury found the appellee guilty of negligence which was a proximate cause of the collision, and also found the appellant guilty of negligence which caused or directly contributed to cause the collision in question. In answer to special question No. 4, which asked the jury to state in what way the plaintiff (appellant) was negligent, it said:

'From Instruction No. 9 in that reasonable care was not exercised to avoid a collision. From the evidence presented in the case, the plaintiff did not, after observing the approaching vehicle, make any effort to stop or otherwise indicate his presence through the use of his horn. His effort to swerve was not, in the opinion of this jury, sufficient to constitute reasonable care on his part to avoid a collision.'

The first answer the jury gave to this question terminated with the first sentence, but upon request the court required the jury to give a more specific answer, and the additional two sentences were supplied.

By instruction No. 9 the jury was told:

'You are further instructed that it is the duty of users of a public street or highway to look ahead and see whatever there may be within their view which may affect their use of such street or highway and to keep a lookout for other users of such street or highway, and to exercise reasonable care to avoid a collision with them, and such users of a public street or highway are presumed in law to have seen that which they could have seen had they kept a proper lookout.

'The ordinary and reasonable care required of the users of streets or highways includes a degree of care commensurate with the risk of danger to others by their use of such street or highway.'

The appellant specifies that the trial court erred in overruling his motion for a new trial on the following grounds:

'1. Because it was an abuse of discretion so to do under the evidence produced;

'2. Because there was no dispute concerning any pertinent facts;

'3. Because on the facts admitted by all parties and under the instructions of the court, plaintiff was entitled to recover, the only question being how much.

'4. Because there was no evidence upon which the jury could base the findings of contributory negligence as stated in the answers to the special questions.'

No complaint was made by the appellant to the exclusion of any evidence, nor does he question any of the court's instructions to the jury.

The appellant concedes these specifications basically go to the same question and argues them together in his brief. It is argued by the appellant that the jury found him guilty of negligence in two particulars after observing the approaching vehicle of the appellee, (a) in failing to make any effort to stop, or (b) otherwise indicate his presence through the use of his horn.

The appellant contends there is absolutely nothing in the record to show that he did not use his horn. The appellant then argues in substance that he had the right of way at the intersection, because he was on the right and had entered the intersection first; that he had passed the middle of the intersection by 2 feet and 8 inches, and had the right to expect that the vehicle which he saw coming from the south, and which did not have the right of way, would at least slow down for the intersection and stop if necessary; and that he had the right to expect the other driver to stay over on her right-hand side of the street. It is argued the appellant had no duty to stop because he had the right to expect that the appellee would use ordinary care and comply with the law in that regard.

G.S.1959 Supp. 8-5, 102, provides, among other things, that a driver of a motor vehicle shall when reasonably necessary to insure safe operation give audible warning with his horn. The application of this statute to an automobile negligence action was discussed in Hubbard v. Allen, 168 Kan. 695, 215 P.2d 647. Under the circumstances there presented, and under the statute, it was held that whether it was necessary for the driver of a motor vehicle to sound his horn to insure the safe operation thereof was a question of fact for the jury and not a question of law for the court.

At the trial the appellee testified 'I didn't hear any warning or signal of approach from plaintiff's car.' In her answer she alleged as a specific act of negligence the failure of the appellant to sound a warning, and the jury in accordance with such issue framed by the pleadings found the failure of the appellant to sound his horn was an act of negligence which caused or directly contributed to the cause of the collision in question. Thus, the jury determined that it was...