Keir v. Trager

• Decision Date: 30 January 1932
• Docket Number: 30222.
• Citation: 134 Kan. 505,7 P.2d 49
• Parties: KEIR v. TRAGER et al.
• Court: Kansas Supreme Court

7 P.2d 49

134 Kan. 505

KEIR v. TRAGER et al.

No. 30222.

Supreme Court of Kansas

January 30, 1932

Syllabus by the Court.

When reasonable minds might reach different conclusions, evidence relating to contributory negligence presents jury case.

Motorist on primary highway is not negligent in assuming that driver of car on secondary highway will stop in obedience to stop sign (Rev. St. Supp. 1931, 8--122).

Whether motorist on primary highway was contributorily negligent in assuming that driver on secondary highway would stop in obedience to sign at intersection held for jury (Rev. St Supp. 1931, 8--122).

1. One driving on a primary highway approaching an entrance of a secondary highway into such highway, at which a stop sign has been erected by the state highway commission, is not negligent in assuming that the driver of a car on the secondary highway will stop in obedience to the sign.

2. When the facts relating to contributory negligence are of such character that reasonable minds might reach different conclusions thereon, it is a question of fact for the jury to determine.

3. The instructions respecting the law of the road and contributory negligence considered with other instructions, and held not misleading.

4. The particular findings of the jury considered, and held not inconsistent with the general verdict.

Appeal from District Court, Johnson County; Garfield A. Roberds Judge.

Action by Annie Keir against Mrs. Will Trager and another. Judgment for plaintiff, and defendants appeal.

Arthur J. Stanley and Arthur J. Stanley, Jr., both of Kansas City Kan., for appellants.

John C Nipp and E. E. Thompson, both of Kansas City, Mo., and C. W. Gorsuch and C. B. Little, both of Olathe, for appellee.

SLOAN J.

This action was brought to recover damages growing out of the collision of two automobiles. The plaintiff prevailed, and the defendants appeal.

The principal contention of the appellants is that the court erred in overruling their demurrer to appellee's evidence.

The accident occurred on highway 73, where Sixty-Third street enters the highway. Highway 73 is an 18-foot brick highway, with concrete ribbons on either side. Sixty-Third street is a dirt road covered with loose rock or gravel. It enters the highway at right angles, but does not cross it. At the point where Sixty-Third street enters the highway, there is a stop sign. On July 10, 1930, the appellee was driving south on the highway, operating an Essex sedan with nonskid tires and brakes in perfect condition. She was accompanied by her daughter. When she was about 235 feet north of the street, she was driving about 25 miles per hour. She looked to the southwest, and saw the appellants' car proceeding east on Sixty-Third street at about 35 miles per hour. A house stood on the northwest corner of the junction, and for a short distance appellants' car was not visible to the appellee. Appellee testified:

"I next saw this car after it reappeared in front of the house and I continued the same speed in my automobile. I was relying on the car stopping.

"Q. Did you slacken your speed any? A. I didn't feel I had to slacken my speed.

"Q. You didn't slacken it then, did you? A. No.

"I was 65 feet from the intersection when I came past the Smith house and the Trager car was about 135 feet west of it. It was traveling at the same rate of speed as it was when I saw it up further west when I first saw it.

"I took my foot off the gas and that is all I did. It slowed up my car some. I was going forward to the intersection and this car was coming right down in front of me.

"I did not then see there was going to be a collision, it came too fast. I have never had occasion to try to stop my car so suddenly in driving twenty or twenty-five miles an hour.

"I put on my brakes when I seen I could not avoid a collision.

"Q. At what point were you? How close to the intersection were you when you saw you couldn't avoid a collision? A. Near enough to make me feel I had to try to stop it.

"Q. Can't you stop an Essex car with four-wheel brakes, in first class condition, that had been overhauled within two weeks before an accident, when it was going 20 to 25 miles an hour, with the gas shut off, in less than 65 feet? A. I don't know how to answer that question because I did the very best I could to stop the accident and I couldn't tell you the speed or the measurement. When a woman gets in such a position as I was thrown that day, I would just be telling the court a lie if I put it in feet.

"I was relying entirely on the fact that I was on a state highway and I had the right of way and I expected the other car to stop but I began to do something by taking my foot off the gas but I did not make an attempt to stop the car until I saw the other car was not stopping. *** I put on my brakes about four or five feet from the point of collision. My tires did not skid, my tires were non-skid tires."

The testimony of appellee's daughter does not differ essentially from the testimony of the appellee. A witness who appeared on the scene of the accident shortly after it occurred testified that the appellant Anna Marie Trager said: "It is all my fault." Evidence was also adduced relating to the extent of the injury. To this evidence the appellants demurred, "for the reason the case made by the plaintiff conclusively proves the plaintiff to have been guilty of contributory negligence as a matter of law and she is not entitled to recover." The court overruled the demurrer, and this is assigned as error.

The general rule is that the defense of contributory negligence is a question of fact to be determined by the jury. It is for the jury to determine, considering the special circumstances and surroundings of each particular case, whether the conduct of the parties was such as would be expected of a reasonable prudent person. St. Paul Fire & Marine Insurance Co. v. Railroad Co., 110 Kan. 4, 202 P. 582. In considering a demurrer, all of the testimony...