Jerobek v. Safeway Cab, Transfer & Storage Co.

• Decision Date: 11 December 1937
• Docket Number: 33535.
• Citation: 73 P.2d 1097,146 Kan. 859
• Parties: JEROBEK v. SAFEWAY CAB, TRANSFER & STORAGE CO.
• Court: Kansas Supreme Court

73 P.2d 1097

146 Kan. 859

JEROBEK v. SAFEWAY CAB, TRANSFER & STORAGE CO.

No. 33535.

Supreme Court of Kansas

December 11, 1937

Syllabus by the Court.

In action against taxicab company by passenger for injuries sustained when taxicab ran into curbing when driver attempted to avoid collision at intersection, finding of jury that driver was guilty of negligence in failing to exercise proper precautions prior to entering intersection was within issues framed by pleadings alleging that driver failed to exercise utmost prudence and foresight to avoid injury to passenger prior to and at time of collision.

In action against taxicab company by passenger for injuries sustained when taxicab ran into curbing when driver attempted to avoid collision at intersection, evidence was sufficient to support findings that passenger's injuries were not result of unavoidable accident, that driver was guilty of negligence in failing to exercise proper precautions prior to entering intersection, and that driver did not exercise prudence in avoiding injury to passenger.

In personal injury action, wherein X-ray picture of plaintiff's injured back, taken by qualified X-ray technician, was duly identified and admitted, court properly permitted qualified physician to explain picture to jury.

In personal injury action, court did not abuse discretion in refusing to appoint neutral physician to examine plaintiff where defendant had five physicians as expert witnesses, and two physicians were called by plaintiff.

1. In an action for personal injuries claimed to have been sustained by the plaintiff while riding as a passenger in a taxicab operated by the defendant, the record is examined and held, (a) the negligence found by the jury in response to special questions was within the issues framed by the pleadings; (b) the special findings and verdict were supported by sufficient competent evidence; (c) there was no abuse of discretion in the refusal of the court to appoint a neutral physician to examine the plaintiff.

2. In an action for personal injuries received in an automobile collision where an X-ray picture of plaintiff's back was taken by a qualified X-ray technician and which was duly identified and admitted in evidence, it was not error to permit a qualified physician to explain the picture to the jury.

Appeal from District Court, Sedgwick County, Division No. 3; Grover Pierpont, Judge.

Action by Edith Jerobek against the Safeway Cab, Transfer & Storage Company. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment affirmed.

J. D Fair, W. A. Kahrs, Henry Butler, William J. Wertz, Vincent F Hiebsch, and Forest V. McGalley, all of Wichita, for appellant.

Clarence R. Sowers, of Wichita, for appellee.

ALLEN Justice.

This was an action for personal injuries claimed to have been sustained by the plaintiff while riding as a passenger in a taxicab operated by the defendant in the city of Wichita. The trial resulted in a judgment for the plaintiff, and defendant appeals.

The accident occurred near the intersection of Twenty-First street and Waco Avenue. Twenty-First street runs east and west and Waco avenue runs north and south. Plaintiff was riding in a taxicab of the defendant going west on Twenty-First street. As the driver of the taxicab entered the intersection of Waco avenue, the taxicab almost collided with a car approaching the intersection from the west on Twenty-First street. To avoid a collision, the two cars were forced south in the center of Waco avenue, thus forcing the taxicab to drive south on the east or wrong side of Waco avenue. The car coming from the west, after turning south on Waco avenue, continued to make a right turn and ran into a filling station driveway on the corner. As the taxicab turned south into Waco avenue, and when the rear end of the taxicab was about even with the south line of Twenty-First street the driver of the taxicab first noticed a car coming from the south on Waco avenue at a speed of more than 25 miles per hour. This car was about 75 feet from the taxicab at that time. To avoid collision with this northbound car, the taxicab driver turned his car to the left and drove his car against the east curb of Waco avenue. The impact threw the plaintiff forward under the cowl dash of the taxicab, causing the injuries for which she asks damages.

The petition charges negligence in the following particulars:

"By failure to perform the duty required of it in exercising the utmost prudence and foresight to avoid injury to the plaintiff prior to and at the time of the collision aforesaid.

"In driving said taxicab in said intersection at a speed greater than was reasonable and proper having regard for the traffic at said time and place of the collision.

"In failing to observe approaching traffic at time the taxicab entered intersection in time to avoid a collision.

"In driving on the wrong side of the street in front of approaching traffic.

"In failing to observe and have regard for the use of the street and the condition of the traffic prior to the collision."

The case was tried before a jury. The jury returned a general verdict in favor of the plaintiff and returned answers to special questions. The answers returned to the special questions are as follows:

"1. Do you find that the plaintiff's injuries were the result of an unavoidable accident? Answer: No.

"2. If you find for the plaintiff, state the acts of negligence, if any, of which you find the defendant guilty? Answer: Cab driver failed to exercise proper precautions prior to entering intersection of streets.

"3. Did the taxicab driver exercise utmost prudence and foresight, under the circumstances, to avoid injury to the plaintiff immediately prior to, and at the time the accident occurred? Answer: No."

Appellant contends that the negligence as found by the jury was not pleaded. The argument is based on the answer to special question No. 2 that "Cab driver failed to exercise proper precautions prior to entering intersection of...