Lathrop v. Miller

• Decision Date: 07 February 1931
• Docket Number: 29,744
• Citation: 132 Kan. 425,295 P. 722
• Parties: MARY LATHROP, Appellee, v. BURKE MILLER, Appellant
• Court: Kansas Supreme Court

295 P. 722

132 Kan. 425

MARY LATHROP, Appellee, v. BURKE MILLER, Appellant

No. 29,744

Supreme Court of Kansas

February 7, 1931

Decided January, 1931.

Appeal from Bourbon district court; CHARLES F. TRINKLE, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

MOTOR VEHICLES--Injury to Pedestrian--Verdict and Findings. In an action to recover damages for the negligence of defendant in driving his automobile against and injuring plaintiff, the jury returned a general verdict for plaintiff and with it a special finding that plaintiff by her own negligence contributed to her injury. Held, that the special finding operated to nullify the general verdict and bars a recovery of damages.

B Hudson and Douglas Hudson, both of Fort Scott, for the appellant.

Hubert Lardner and Daniel O. Lardner, both of Fort Scott, for the appellee.

OPINION

JOHNSTON, C. J.:

This action was brought by Mary Lathrop against Burke Miller to recover damages sustained by her when an automobile driven by defendant was run against her on January 14, 1929, in the city of Fort Scott. She recovered damages in the sum of $ 150, and the defendant appeals.

In her petition she alleged that the injury was inflicted by the carelessness and negligence of the defendant in failing to give signals, in driving on the wrong side of the street, and at a rate of speed that was excessive, and also that he failed to keep a proper lookout for persons using the street. The defendant in his answer alleged that the injury was caused by the gross negligence of plaintiff in rushing out into the street at a point where there was no crossing or crosswalk, a place at which drivers would not anticipate that persons might be crossing, and also without taking the ordinary precaution to care for her own safety--all this on a dark night with icy streets, sleet and wind, which interfered with both vision and hearing. With the verdict in favor of plaintiff the following special findings were returned by the jury:

"1. Was there any crosswalk at the point at which plaintiff was attempting to cross the street? A. No.

"2. What kind of a night was it? A. Cloudy and cold.

"3. What did defendant do to try to prevent the accident when he saw the plaintiff crossing the street? A. Applied brakes and tried to dodge.

"4. If defendant put on his brakes, how far was it from the point at which the brakes were applied until the car stopped? A. Thirty feet.

"5. Was the plaintiff negligent in attempting to cross the street at this point and under the circumstances above found? A. No.

"6. Could not plaintiff have stopped quicker than the defendant could have stopped his automobile immediately preceding the accident? A. Yes.

"7. After the plaintiff was seen by the defendant, did he not stop his automobile as soon as it could be stopped? A. Yes.

"8. Do you find that plaintiff by her own negligence contributed to the injury complained of? A. Yes.

"9. What could defendant have done after he discovered plaintiff in the street in front of him, more than he did, to avoid the injury? A. Nothing more."

There can be little controversy as to the disposition of this appeal. The contributory negligence of the plaintiff was brought directly in issue. There was evidence tending to show a lack of ordinary care on the part of the plaintiff and that her negligence contributed to the injury sustained. Whether the plaintiff exercised ordinary care to prevent...