Jilka v. National Mut. Casualty Co. of Tulsa
| Decision Date | 09 November 1940 |
| Docket Number | 34838,34839. |
| Citation | 152 Kan. 537,106 P.2d 665 |
| Parties | JILKA v. NATIONAL MUT. CASUALTY CO. OF TULSA (two cases). |
| Court | Kansas Supreme Court |
Rehearing Denied Dec. 16, 1940.
Syllabus by the Court.
Where several acts of negligence are pleaded as the basis of an action for damages, jury's special finding of particular act or acts of negligence of which defendant was guilty acquits defendant of every other charge of negligence stated in petition.
Where absence of lights or warning signals does not prevent motorist from seeing vehicle in time to avoid collision, such absence is not "proximate cause" of resulting collision.
A general verdict imports a finding on all issues in the case not inconsistent with special findings, and nothing will be presumed in favor of the special findings. Gen. St.1935 60-2918.
Special findings shall be given such a construction, if possible, as will bring them into harmony with the general verdict. Gen St.1935, 60-2918.
Where special findings cannot be reconciled with general verdict and are sufficiently full and complete in themselves judgment must follow special findings. Gen.St.1935, 60-2918.
The failure of truck driver to place signals back of truck which stalled in dust storm, as required by state highway regulations, was not "proximate cause" of collision with following motorist traveling at speed of 30 miles per hour and seeing truck in time to avoid collision.
1. Where several acts of negligence are pleaded as the basis of an action for damages and the jury makes a special finding of the particular act or acts of negligence of which defendant was guilty, such special finding amounts to an acquittal of defendant on any other acts of negligence alleged in plaintiffs' petition.
2. Where the absence of lights or warning signals does not prevent a motorist from seeing a vehicle in time to avoid colliding with it, their absence is not the proximate cause of a resulting collision.
3. A general verdict imports a finding upon all issues in the case not inconsistent with the special findings, and nothing will be presumed in favor of the special findings.
4. Special findings shall be given such a construction, if possible, as will bring them into harmony with the general verdict.
5. If special findings cannot be reconciled with the general verdict, and are sufficiently full and complete in themselves, judgment must follow the special findings.
Appeal from District Court, Sedgwick County, Division No. 2; Isaac N. Williams, Judge.
Separate actions by Rudolph R. Jilka and by his wife, Josephine Jilka against the National Mutual Casualty Company of Tulsa for personal injuries and property damage received in a rear-end automobile-truck collision. The cases were consolidated for trial. From a judgment for the plaintiffs, the defendant appeals.
Reversed and remanded, with directions.
C. A. Matson, I. H. Stearns, and E. P. Villepigue, all of Wichita, for appellant.
Gerald C. Stover, C. M. Williams, D. C. Martindell, W. D. P. Carey, Wesley E. Brown, and E. B. Brabets, all of Hutchinson, and C. H. Brooks, Howard T. Fleeson, Carl G. Teebe, Wayne Coulson, and Paul R. Kitch, all of Wichita, for appellees.
The plaintiffs, Rudolph R. Jilka and Josephine Jilka, his wife, brought separate actions against the defendant insurance carrier for personal injuries and property damage received in a rear end automobile-truck collision. The cases were consolidated for trial and judgment was entered for plaintiffs. Defendant appeals.
The defendant company carried the liability insurance on the Melton & Enright truck which was being operated under a contract carriers' permit.
The collision occurred about noon August 9, 1938, on highway No. 40 west of Walker. At this point the road is a black-top, twenty-two feet wide, with shoulders on each side between six and seven feet wide. At the time stated, the truck of Melton & Enright was being driven west on this highway, and a short distance west of Walker ran into a dust storm. The wind was blowing from the south and the dust area was a little more than a quarter of a mile wide. Shortly after entering the dust storm area the truck became disabled. As stated by the driver: A highway patrolman testified that the right wheels of the truck were about two feet south of the north edge of the black-top.
The witness, Sellman, driver of the truck, testified: ***"
The petition alleged that the visibility in the dust area was 100 to 150 feet. Plaintiffs' witness Fordham arrived just after the accident. He stated: The driver of the truck testified that the visibility would vary. "Sometimes it would be very poor and then it would lighten up and you could see may be as far as a hundred or two hundred or maybe three hundred feet."
The plaintiff Rudolph R. Jilka was driving a Ford Tudor sedan, and was accompanied by his wife and baby. He left Walker shortly before noon and drove west on highway No. 40. The petition alleged that he was driving 40 or 45 miles per hour, "and was a few hundred yards west of the town of Walker when he drove into said dust at which place he turned on his lights and slowed his car to a speed of thirty (30) to thirty-five (35) miles per hour." He testified: "I first saw the truck when we were approximately one hundred feet from it." He stated that when he realized the truck was standing still he slammed on his brakes. ***"
The car skidded 59 feet. As a result of the collision the Ford car was wedged under the truck, and a wrecker was necessary to remove it. The Ford dealer who sold the car to plaintiff in March, 1938, testified the car had been smashed in on the front end--the front end was caved in--pushed back. It damaged the generator and even the distributor and valve chambers and frame. The dealer had seen the car the day before the accident, and saw it shortly afterwards. It was worth $800 before and about $200 after the collision.
An expert witness called by plaintiffs stated: "I would say a car going about thirty miles an hour would stop, in forty feet." With gravel on the road it would go "one car length farther and maybe two." the witness further testified: "I couldn't say how fast a car would be going to skid forty or fifty feet and hit the back end of a...
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