Knoche v. Meyer Sanitary Milk Co.

Decision Date05 March 1955
Docket NumberNo. 39548,39548
Citation280 P.2d 605,177 Kan. 423
PartiesEvelyn KNOCHE, Appellee, v. MEYER SANITARY MILK COMPANY, a Corporation, Appellant
CourtKansas Supreme Court

Syllabus by the Court.

The record examined in an action to recover damages for personal injuries sustained by the plaintiff in a collision between defendant's truck and an automobile driven by her, and held:

1. The evidence and the answers of the jury to special questions do not show the plaintiff was guilty of negligence precluding her recovery.

2. The trial court did not err in refusing to give to the jury an instruction requested by the defendant, nor in the instructions it gave the jury.

3. The trial court did not err in refusing to submit to the jury certain special questions referred to in the opinion.

4. The trial court did not err in refusing to set aside the verdict of the jury for the reasons that the amount of the verdict was excessive or that it was the result of bias and prejudice on the part of the jury.

5. The trial court did not err in overruling defendant's motion for a new trial.

A. J. Herrod, Kansas City, for appellant.

Leonard O. Thomas, Kansas City, Arthur J. Stanley, Arthur J. Stanley, Jr., J. E. Schroeder and Lee E. Weeks, Kansas City, on the brief, for appellee.

PARKER, Justice.

This was an action by the plaintiff to recover damages for injuries sustained by her in a collision between the defendant's truck and an automobile driven by her. She prevailed and the defendant appeals.

For present purposes it may be said that in her petition on which the cause was tried, the plaintiff alleged that about noon on March 4, 1950, she was driving an automobile south on Mahaney Road, an established highway in Wyandotte County, at a point approximately 500 feet south of State Highway No. 5, and at that time Funk, an employee of the defendant, was in charge of defendant's milk truck which was parked headed in a southeasterly direction in a private driveway leading to the east from Mahaney Road, and that as she approached the entrance of that driveway and had reached a point directly opposite that entrance, Funk suddenly and without warning operated the truck backward and in a northwesterly direction into and against the automobile driven by plaintiff, causing her severe, permanent and painful injuries; that the collision and her injuries were caused solely and proximately by the negligence of the defendant and its agent in failing (a) to stop the truck to avoid the automobile plaintiff was driving; (b) to stop, slow down or turn aside to avoid the collision when the defendant should have known the collision was imminent; (c) to sound a horn or give any signal of intention to back from the driveway into Mahaney Road; (d) to see the plaintiff's automobile when by the exercise of reasonable care and caution it could have been seen; (e) to yield the right of way to plaintiff; and (f) in driving the truck into Mahaney Road without first looking to observe whether other traffic was approaching the private driveway so closely as to constitute an immediate hazard. We shall not at this time detail allegations of injuries sustained. She prayed for a judgment of $25,000.

For present purposes it may be said that defendant in its answer admitted formal matters, denied generally and alleged that if plaintiff received injuries, the same were caused or contributed to her by negligence (a) in driving at such a rate of speed she was unable to stop within the distance she could see defendant's truck in and upon Mahaney Road; (b) in failing to have her automobile under control, to stop the same and in permitting it to run into, upon and against defendant's truck; (c) in failing to turn her automobile to one side to avoid a collision and in driving on the wrong side of Mahaney Road; (d) in failing to keep a proper lookout for other vehicles on Mahaney Road and particularly the rear end of defendant's truck; and (e) in failing to stop when, by the exercise of reasonable care, she could have seen the rear end of defendant's truck in and upon Mahaney Road. Defendant prayed that plaintiff take nothing.

The plaintiff's reply denied any matter of the answer inconsistent with the allegations of her petition.

At the trial of the action the defendant demurred to the plaintiff's evidence as not showing facts sufficient to constitute a cause of action against the defendant or that it was guilty of any negligence and that the evidence showed plaintiff was guilty of negligence which contributed to and was the proximate cause of any injuries or damage she received. This demurrer was overruled. The trial proceeded and when the parties rested the defendant requested certain instructions to the jury and the submission of certain special questions, which will be mentioned later. The jury returned a verdict in favor of the plaintiff for $25,000 and answered special questions submitted as follows:

'1. At what rate of speed was the Knoche car traveling for a distance of approximately 200 feet prior to the collision? Answer: Between 25 to 30 M.P.H.

'2. How far, in feet, from the south line of Highway No. 5 on Mahaney Road was Mrs. Knoche when she first saw defendant's truck? Answer: 50 feet.

'3. Did Mrs. Knoche continue to observe the truck from the first time she saw it, up to the point of collision? Answer: No.

'4. If you answer Question No. 3 'No,' then state what, if anything, prevented Mrs. Knoche from observing the truck up to the time of the collision? Answer: Nothing.

'5. Did Mrs. Knoche increase the speed of her car when her car was north of the point of collision? Answer: No.

'6. Did Mrs. Knoche give any warning of any kind prior to the time of the collision? Answer: No.

'7. Is the signature of Defendant's Exhibit '1' the signature of Mrs. Knoche? Answer: Yes.

'8. How far did the Knoche car travel after the collision? Answer: 80 feet.

'9. At the time of the collision was, (a) The Meyer truck stopped, or (b) Moving? Answer: (a) _____ (b) Moving.

'10. Between the right rear corner of the Meyer truck and the west edge of the road, was there room for an automobile proceeding south to pass? Answer: Yes.

'11. If you answer Question No. 10 'Yes,' then state whether the car proceeding south could pass said Meyer truck safely? Answer: No.

'12. If you find the driver of the Meyer truck guilty of any act of negligence, state in detail such acts of negligence? Answer: He was negligent as stated by law--8-553. The Meyer truck failed to observe and yield right of way to approaching automobile on Mahaney Road.

'13. If you find Mrs. Knoche guilty of any negligence, state in detail the act or acts of negligence of which you find her guilty? Answer: No negligence.

'14. From the time the Meyer truck proceeded to back out of the driveway described in the evidence in this case, did said truck stop before entering Mahaney Road? Answer: No.

'15. Did the driver of the Meyer truck give any warning of any kind prior to the time of the collision? Answer: No.

'16. At the time of the collision was any part of the Meyer truck west of the centerline of Mahaney Road? Answer: Yes.

'17. Was the Knoche car at any time driven on the east side of the centerline of Mahaney Road? Answer: No.'

In due time the defendant filed its motion for a new trial, asserting fourteen grounds therefor; its motion that ten answers to special questions be set aside, the reason not being shown by the abstract; and its motion for judgment upon the answers to special questions, the motion containing an allegation that some of the answers were not supported by the evidence, were inconsistent with each other and required judgment for the defendant. These motions were denied and judgment was rendered on the verdict for the plaintiff against the defendant.

In due time the defendant perfected its appeal to this court. Its specifications of error are sufficient to discuss the questions which it states in its brief are involved: 1, That the plaintiff was guilty of contributory negligence; 2, that the trial court erred in overruling its motion for a new trial; 3, that the trial court erred in overruling its motion to set aside answers to certain special questions; 4, that the trial court erred in overruling its motion for judgment on the answers to the special questions; and 5, that the verdict was grossly excessive. No argument is presented as to Questions 3 and 4 and they will not be further noticed.

Appellant's first contention is that under the evidence and the findings of the jury the appellee was guilty of contributory negligence. Appellant makes it clear that it does not contend its demurrer to appellee's evidence should have been sustained. It admits there was evidence to support the findings of the jury that at the time of the collision its truck was moving; that the truck did not stop before entering Mahaney Road, that its driver gave no warning; that at the time of the collision a part of its truck was west of the centerline of the road; and that appellee's automobile was not at any time east of that centerline. Appellant directs attention to discrepancies between appellee's individual testimony and that of some of her witnesses as to location of appellant's truck in the private driveway, the speed she was driving, the distance her automobile went after the collision and whether there was room to the west of appellant's truck for her to have passed to avoid collision, and to the fact that in certain instances the jury's answers did not agree strictly with her personal version. In addition contention is made that the jury's answer to Question 11 is evasive and a conclusion and not a statement of fact; that the answer to Question 13 that appellee was guilty of no negligence is a conclusion and must give way to the answer to Question 2 that she did not continue to observe the truck from the first time she saw it up to the point of collision; that under the answer to Question 10...

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