Leinbach v. Pickwick Greyhound Lines, 31100.

• Court: United States State Supreme Court of Kansas
• Writing for the Court: BURCH, Justice.
• Citation: 138 Kan. 50,23 P.2d 449
• Parties: LEINBACH v. PICKWICK GREYHOUND LINES et al.
• Docket Number: 31100.
• Decision Date: 08 July 1933

23 P.2d 449

138 Kan. 50

LEINBACH
v.
PICKWICK GREYHOUND LINES et al.

No. 31100.

Supreme Court of Kansas

July 8, 1933

Syllabus by the Court.

In action arising out of collision between automobile and defendant's bus after automobile collided with another automobile and whirled across street in front of on-coming bus, evidence sustained special findings which were consistent and which established defendant's liability.

Court should, if possible, interpret special findings so as to harmonize them with each other and with general verdict.

Safety of passengers in motorbus is merely circumstance to be considered like any other condition in making emergency stop.

"Last clear chance doctrine" includes not only duty to act when helpless peril is known, but also duty to exercise vigilance to discover helpless peril, if duty of vigilance exists toward class of which one in peril is member.

Under "last clear chance doctrine," plaintiff who has negligently subjected himself to risk of harm from defendant's subsequent negligence may recover if, immediately preceding harm, plaintiff is unable to avoid it by exercise of reasonable vigilance and care and defendant knows of plaintiff's situation and realizes, or has reason to realize, peril involved, or would have discovered plaintiff's situation and thus had reason to realize his helpless peril had defendant exercised vigilance which it was his duty to plaintiff to exercise and thereafter is negligent in failing to utilize with reasonable care and competence his then existing ability to avoid harming plaintiff.

$27,000 for personal injuries sustained in automobile accident held excessive, $20,000 being adequate.

Denial of continuance is within trial court's discretion.

1. In North Lawrence, Seventh street, a paved north and south street, is intersected by Lyons avenue, an unpaved east and west street. A Ford car which approached the intersection from the west struck a Dodge car which approached from the north and whirled the Dodge car about until it faced north on the east side of the Seventh street pavement. An interstate passenger bus which approached from the south struck the Dodge car. Plaintiff, an occupant of the Dodge car, sustained injuries on account of which he sued the bus company for damages. Held, special findings of fact returned by the jury were sustained by the evidence, were not inconsistent with each other, and established liability of the bus company to plaintiff.

2. Rulings of the trial court relating to the subject of safety of passengers in the bus as a factor to be considered in making an emergency stop, approved.

3. A contention that the last clear chance doctrine includes knowledge of helpless peril only and does not include duty to exercise vigilance to discover helpless peril, considered, and held to be unsound.

4. The doctrine of last clear chance stated.

5. The syllabus of the decision in the case of Maris v. Lawrence Railway & Light Co., 98 Kan. 205, 158 P. 6, corrected.

6. The amount of the verdict for damages for personal injuries considered, and held to be too large.

7 Various assignments of error considered, and held to be without merit.

Appeal from District Court, Wyandotte County, Division No. 3; William H. McCamish, Judge.

Action by Charles E. Leinbach against the Pickwick Greyhound Lines and another. Judgment for plaintiff, and defendants appeal.

Judgment modified and, as so modified, affirmed on condition of plaintiff's assent to modification; otherwise cause remanded, with directions.

J. E. McFadden and O. Q. Claflin, Jr., both of Kansas City, Edmund H. McVey, C. A. Randolph, and Alfred Kuraner, all of Kansas City, Mo., and M. J. Healy, of Topeka, for appellants.

Fred Robertson, Edward M. Beddington, and J. O. Emerson, all of Kansas City, for appellee.

BURCH, Justice.

The action was one for damages sustained by Charles E. Leinbach when the automobile in which he was riding was struck by a bus operated by defendant Pickwick Greyhound Lines, an interstate transportation corporation. The driver of the bus, Orville Thompson, [23 P.2d 450] was made a party defendant. The jury returned special findings of fact and a general verdict in favor of plaintiff. Judgment was entered accordingly, and defendants appeal.

This is a second appeal. At the first trial, the verdict and judgment were for plaintiff. On appeal, the judgment was reversed, and the cause was remanded for new trial. Leinbach v. Pickwick Greyhound Lines, 135 Kan. 40, 10 P.2d 33. In order that this opinion may be complete in itself, it is necessary to make a statement of the facts of the accident. For brevity, the defendant Orville Thompson will be referred to by name or as the bus driver, and Pickwick Greyhound Lines will be referred to as the defendant.

Seventh street and Lyons avenue in North Lawrence intersect. From the intersection Seventh street extends north and south. Lyons avenue extends east and west. The center of Seventh street is paved with an 18-foot concrete slab and is a part of highway U.S. 40. Adjoining the pavement on the east was a dirt shoulder 5 to 7 feet wide. East of the shoulder was a shallow ditch with gently sloping sides. East of the drain and level with the shoulder and the pavement was a field, vacant and uninclosed. The pavement, shoulder, and drain were dry. Lyons avenue is an unpaved street 45 feet wide. The traveled way is 18 feet wide, is south of the center of the street, and extends to within 6 feet of the south line of the street. West of U.S. 40 and north of Lyons avenue was Claude Minor's house. The house stood on an elevation, and the house, a fence, and some trees obstructed the view of a driver of an automobile approaching the intersection from the north or from the west until near the intersection. West of U.S. 40 and south of Lyons avenue were obstructions to the view of an automobile driver approaching the intersection from the west until near the intersection. South of Lyons avenue is Lincoln street. The distance from the north line of Lincoln street to the center of Lyons avenue is 624 feet, and for that distance the pavement is practically level.

W. E. Stickel, driving a Dodge sedan, approached the intersection from the north on the west side of the pavement. With him in the front seat was Charles Leinbach, the plaintiff. In the rear seat were Mrs. Stickel and Mrs. Leinbach. As the Dodge car approached the intersection from the north, a Ford roadster driven by Bernard Riewe approached the intersection from the west on the traveled portion of Lyons avenue. In the seat with the driver of the Ford were Carl Wheeler and Mrs. Laverne McManus. The Dodge and the Ford collided. Just before the collision the Dodge was turned toward the center of the pavement. The Ford kept its course eastward and struck the Dodge when the Dodge was about the center of U.S. 40 and in the south portion of the intersection. The right rear fender of the Dodge and the right running board, just in front of the right rear wheel, were smashed. The left front fender and headlight of the Ford were smashed, and the left front wheel of the Ford was broken.

There were various estimates of the speed of the two cars as they approached the intersection and at the time of the collision. For the Dodge the estimates ranged from 20 to 40 miles per hour, and for the Ford from 15 to 40 miles per hour. The two cars "whirled around." They "spun around." It took them "just an instant" to get over to the east side of the pavement.

The Dodge turned until the front end was toward the north. The Ford followed the Dodge around until it was east of the Dodge with its front end toward the southeast. The Dodge was on the pavement and the Ford was on the shoulder close beside the Dodge. The Ford finally turned over on its side. Riewe, testifying for defendant, said the front part of the Ford was in the ditch. None of the occupants of the Ford was severely injured.

While the events described were in progress, defendant's bus was approaching the intersection from the south on the east side of the pavement. The bus was about 30 feet long and 7 feet 6 inches wide, and there were twelve passengers in the bus. The bus had four speeds forward. The driver said that at the corner of Lincoln street, the bus was in second gear. He said that about halfway between Lincoln street and Lyons avenue he shifted to third speed. As indicated above, that would be about 300 feet from the center of Lyons avenue. The driver said that after he shifted gears and straightened up, he saw confusion ahead. He said he did not see the collision between the Ford and the Dodge. He said the first he saw of the Dodge, the front end of it was facing toward, the northwest. The rear end was practically toward the southeast and was turning toward him. It continued to turn until the back of the Dodge was directly toward him. He said he did not see any portion of the side of the Dodge. He first saw the back end of it. He said that when the Dodge got with its back directly toward him, the car was in the act of turning over off its wheels. He said two wheels on one side were lifted off the pavement and the other two wheels front and back were on the pavement. He said the Dodge seemed to be turning over on two wheels and seemed to be practically leaving the pavement. He would not say whether the two wheels were off the pavement 3 to 4 inches or 2 to 3 feet.

The bus struck the rear end of the Dodge. The observation of passengers in the bus and of others was that the Dodge had not risen from the pavement but was still on its wheels when the bus struck it. A witness for defendant said the Dodge was still in the air, and [23 P.2d 451] Orville Thompson said the Dodge had not turned over on its side when the bus hit it.

The bus propelled the Dodge forward about 6 or 8 feet and turned it over on its back with its wheels in the air. Witnesses...