Koch v. Suttle, 40347
Decision Date | 12 January 1957 |
Docket Number | No. 40347,40347 |
Citation | 306 P.2d 123,180 Kan. 603 |
Parties | L. D. KOCH, Appellee, v. Wanda SUTTLE, Appellant. |
Court | Kansas Supreme Court |
Syllabus by the Court.
In an action to recover damages for personal injuries sustained by plaintiff in a collision between a truck in which he was making a left turn and an overtaking automobile driven by defendant who was trying to pass on the left at a rural intersection, the record is examined and for reasons more fully set out in the opinion it is held, the trial court did not err (1) in ruling on admissibility of evidence; (2) in overruling defendant's demurrer to plaintiff's evidence; (3) in overruling defendant's motion for judgment notwithstanding the verdict; (4) in overruling defendant's motion for new trial; and (5) in rendering judgment for plaintiff based upon the verdict of the jury.
H. Lee Turner, Great Bend, argued the cause and was on the briefs for appellant.
Arthur C. Hodgson, Lyons, argued the cause and was on the briefs for appellee.
This is an action to recover damages for personal injuries sustained by plaintiff in a collision between a truck in which plaintiff was making a left turn and an automobile driven by defendant who was trying to pass on the left at a tural intersection. During the trial a demurrer to plaintiff's evidence was overruled. Later defendant's motion to set aside the jury's answers to special questions, motion for judgment notwithstanding the verdict, and motion for new trial were all overruled. Plaintiff recovered and defendant appealed. The parties will be referred to herein as they were in the court below.
There is no question about the pleadings and they will not be set out. Plaintiff and a deputy sheriff testified in plaintiff's behalf and their evidence showed that shortly after 10:00 a. m. on September 7, 1954, plaintiff was driving a Dodge pickup truck at about forty-five miles per hour in a southerly direction on state highway 14. The highway had a two-lane paved travel portion eighteen feet in width and had sanded shoulders seven to eight feet in width on each side. About 450 feet north of the intersection of the highway with a township sanded road twenty-seven feet wide plaintiff started to slow down and put his hand straight out for a left turn. He continued to so signal until he was 100 to 75 feet from the intersection which was a large rounded corner. At this point plaintiff pulled to the center of the pavement and when about twelve feet north of the center of the intersection he began to cut across in his left turn. When the front wheels of the truck were off the slab but the rear wheels yet thereon a collision occurred in which his left door, fender and running board were smashed. The truck was practically headed east when hit. At the time plaintiff made his signal he noticed in his side rear-vision mirror that a car was following him about a quarter of a mile to his rear. He heard a horn honk which sounded to him to be about 100 or 150 yeards back. He thought defendant was asking for the road on the right-hand side. On re-direct examination plaintiff estimated defendant's speed to be sixty to eighty miles per hour and testified that in relation to the township road, the left front wheel of his truck was about in the center thereof.
On cross-examination much of what is stated above was repeated and in addition plaintiff's testimony went on to show that anyone could see that plaintiff was slowing down, he had aignaled and he thought he had the right to block the road and make his turn because at a corner after a given signal nobody was supposed to pass on the left-hand side. When plaintiff was slowing down, blocking the highway, defendant could have passed on the right side without going onto the whole shoulder if she had been traveling at a normal rate of spped. After the impact he could not get out of the truck which had been knocked back across the slab to the right or west side with the left rear wheel just off the edge of the pavement about twenty-five feet from the point of impact while defendant's 1952 Buick traveled in a southeasterly course across the highway and the township road, over and through a three foot ditch, and over a bank and out into a field.
The deputy sheriff's testimony was typically that of an investigating officer and was similar to plaintiff's testimony as to the point of impact and location of plaintiff's truck at the time of impact. In addition the officer testified that the Buick's 'left wheel left the left side of the pavement, fifty-one feet north of where the impact occurred,' which was not eithin the intersection proper but in the rounded and sanded part of the roadway. The Buick traveled 102 feet from the point of impact to where it came to rest.
Before taking up the questions raised on this appeal it may be well to set out the following pertinent excerpts from the General Statutes of 1949:
* * *'
While violations of these statutes may establish negligence on one hand or contributory negligence on the other, we still have the question of proximate cause to consider, which will be referred to later. Hubbard v. Allen, 168 Kan. 695, 215 P.2d 647.
Two of defendant's contentions invite our attention to rulings of the trial court in admitting and excluding evidence. An examination of the record does not show that these rulings prejudicially affected defendant's substantial rights and we will not disturb a judgment unless such prejudice affirmatively appears. G.S.1949, 60-3317; Booker v. Kansas Power & Light Co., 167 Kan. 327, 205 P.2d 984; Birt v. Drillers Gas Co., 177 Kan. 299, 279 P.2d 280; Siegrist v. Wheeler, 178 Kan. 286, 286 P.2d 169.
The next contention directs us to the trial court's overruling of defendant's demurrer to plaintiff's evidence on the ground that plaintiff showed himself to be guilty of contributory negligence which, as a matter of law, barred his recovery. In support thereof defendant relies on the rule that where the testimony of a litigant in detail clearly destroys the basis for his cause of action, then the case is not entitled to go to the jury and judgment should be rendered against such litigant and cites Evans v. Thornton, 159 Kan. 149, 160, 152 P.2d 853, where the settlement of a partnership business was involved. This rule of law was stated in the Evans case in support of a partially dissenting...
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