Krentz v. Haney
| Decision Date | 10 December 1960 |
| Docket Number | No. 41965,41965 |
| Citation | 357 P.2d 793,187 Kan. 428 |
| Parties | Edith KRENTZ and Killian Krentz, Appellants, v. Wayne HANEY and Margaret J. Haney, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In determining whether as a matter of law a plaintiff is guilty of contributory negligence which precludes his recovery for injuries sustained, all of the testimony favorable to the plaintiff must be accepted as true, and if the facts are such that reasonable minds might reach different conclusions thereon, the question must be submitted to the jury and cannot be determined by the court as a matter of law.
Vincent L. Bogart, Wichita, argued the cause, and J. Wirth Sargent, Emmet A. Bales, Roetzel Jochems, Robert G. Braden, J. Francis Hesse, James W. Sargent, Jr., Stanley E. Wisdom, Cecil E. Merkel, John W. Brimer and Harry L. Hobson, Wichita, were with him on the briefs, for appellants.
Gerald Sawatzky, Wichita, argued the cause, and George B. Powers, Carl T. Smith, John F. Eberhardt, Stuart R. Carter, Robert C. Foulston, Malcolm Miller, Robert N. Partridge, Robert M. Siefkin, Richard C. Harris, Donald L. Cordes and Robert L. Howard, Wichita, were with him on the briefs, for appellees.
This was an action by the parents of a minor pedestrian, plaintiffs (appellants), against the operator and the owner of an automobile, defendants (appellees), to recover for the loss of services and for medical expenses due to the alleged negligent injury of their fifteen-year-old daughter. The court sustained the demurrers to plaintiffs' evidence on the ground that the minor was guilty of contributory negligence as a matter of law barring plaintiffs' recovery. From this ruling plaintiffs appeal.
Defendants concede that the real issue before this court is whether, upon plaintiffs' evidence, reasonable minds would agree that plaintiffs' daughter was guilty of contributory negligence. If, upon an impartial view of plaintiffs' facts, the daughter's conduct fell short of that which the law requires of a reasonably prudent person of her age in protecting herself from injury, the demurrers were rightfully sustained. However, defendants further agree that to sustain a demurrer to the evidence the contributory negligence must clearly appear from the evidence introduced. Moreover, in testing the sufficiency of the evidence as against a demurrer, the inferences that may be properly and reasonably drawn therefrom must be considered in the light most favorable to the party against whom the demurrer is directed, and if the evidence and the inferences viewed in that manner are of such character that reasonable minds, in the exercise of fair and impartial judgment, would reach different conclusions thereon, the demurrer should be overruled and the issue submitted to the jury. Reda v. Lowe, 185 Kan. 306, 311, 342 P.2d 172; Haga v. Moss, 181 Kan. 171, 311 P.2d 281, and cases therein cited. Defendants state that the question of defendant Margaret Haney's negligence under plaintiffs' evidence would be one for the jury were it not for the contributory negligence of plaintiffs' daughter, which fell below that required by the law, precluding plaintiffs' recovery as a matter of law.
The sole question for our determination, therefore, is whether plaintiffs' evidence discloses that there minor child's conduct fell short of that which the law requires of a reasonably prudent person of her age. This requires a brief review of plaintiffs' evidence.
McCormick avenue in Wichita is a public, paved, four-lane, west-east street, forty-four feet in width, with two lanes each for westbound and eastbound traffic. The Sacred Heart Academy is in the 3100 block. The school buildings are located on both the north and the south side of the street in this block. Sidewalks lead from the buildings on the south side of McCormick avenue to the street and continue north from the street to another school building. However, there is no marked crosswalk in the street itself. Students at the academy, in attending classes in the separate buildings, were required to cross McCormick avenue.
At 8:10 on the morning of September 5, a clear, sunny day and the first day of the school year, Caroyn Krentz, a student at the academy and the fifteen-year-old daughter of plaintiffs, left the Administration Building, facing north on McCormick avenue, to attend to class at DeMattias Hall across the street. Caroyn and some of her classmates, several of whom testified at the trial, stopped at the curb and looked up and down the street. They saw a group of girls crossing the street ahead of them and also a car, being driven by defendant Margaret Haney, about four car-lengths (about sixty-eight feet) west of them, but it was moving so slowly they thought it was going to stop. Caroyn and her classmates stepped into the unmarked crosswalk--a prolongation of the sidewalk--and started across the street at a normal pace. There were six or seven girls in Caroyn's group, a group of girls in front of them and another group of girls behind them. All three groups were in the act of crossing the street to attend classes. As Caroyn and her group got halfway across the street, the girl on Caroyn's left 'heard the motor of the car start,' 'yelled at Caroyn' and 'jumped back.' Defendant Margaret's car struck Caroyn with 'a thump,' throwing her high into the air. As Caroyn lay in the center of the crosswalk, she felt nothing at all for a while and later realized she could not move her legs.
Defendant Margaret's car had narrowly missed hitting one of the other girls as well. She had given no warning of any kind of her intention not to stop her car either by way of sounding a horn or otherwise. In fact, the only skid-marks made by defendants' car did not begin until at least six feet after the front of the car had gone through the crosswalk area. The testimony disclosed that defendant Margaret said she had been watching the school children on the school grounds and had looked up in time to see Caroyn in front of her but was unable to stop before hitting her.
It is not necessary to detail the evidence of the many witnesses who testified to the facts. Suffice it to say, the foregoing is a general brief r esume sufficient to determine the question involved.
It is a well-established rule in this state that in determining whether a plaintiff is guilty of contributory negligence when tested by a demurrer, the question must be...
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Deal v. Bowman
...could not differ on the outcome. See Diaz v. Duke, 206 Kan. 650, Syl. ¶ 1, 482 P.2d 48 (1971). As we explained in Krentz v. Haney, 187 Kan. 428, 431-32, 357 P.2d 793 (1960): "Negligence is the lack of due care. The instances are relatively rare when the facts are such that the court should ......
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State v. Rivera
...whether G.R.'s injuries were caused by accidents and child's play or whether they were caused by physical abuse. See Krentz v. Haney, 187 Kan. 428, 432, 357 P.2d 793 (1960). Based on the witness testimony and the photographic evidence admitted at trial, it was not unreasonable for the jury ......
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Carpenter v. Strimple
...v. McCullough, 148 Kan. 561, 83 P.2d 669. For one of our latest pronouncements in connection with the rule last stated see Krentz v. Haney, 187 Kan. 428, 357 P.2d 793. Mindful that it must be construed in the light of the rules just mentioned, we turn to the evidence on which the claim now ......
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Elstun v. Spangles, Inc.
...of the jury in weighing evidence and passing upon questions of fact.'" 286 Kan. at 867, 188 P.3d 941 (quoting Krentz v. Haney, 187 Kan. 428, 431-32, 357 P.2d 793 [1960]). The slight-defect rule is a narrow, judicially created exception to this general principle that has until now been appli......