Leinbach v. Pickwick Greyhound Lines, Inc.

• Decision Date: 09 April 1932
• Docket Number: 30186.
• Citation: 135 Kan. 40,10 P.2d 33
• Parties: LEINBACH v. PICKWICK GREYHOUND LINES, Inc., et al. [*]
• Court: Kansas Supreme Court

10 P.2d 33

135 Kan. 40

LEINBACH v. PICKWICK GREYHOUND LINES, Inc., et al. ^[*]

No. 30186.

Supreme Court of Kansas

April 9, 1932

Syllabus by the Court.

Contributory negligence of driver of automobile which, after collision with another automobile, whirled across street in front of defendant's on-coming bus, resulting in second collision held question for jury under evidence.

Negligence of driver of defendant's bus based on driver's action after he saw, or could have seen, plaintiff's automobile whirled across street into path of on-coming bus after collision with another automobile, held question for jury under evidence.

Instruction that jury should presume, in absence of evidence to contrary that driver of plaintiff's automobile which, after collision with another automobile, whirled across street in front of defendant's on-coming bus, resulting in second collision, was not negligent, though error, held not prejudicial.

Whether negligence of driver of defendant's motorbus, as alleged was proximate cause of collision with plaintiff's automobile, which, after collision with another automobile whirled across street in front of defendant's on-coming bus, held question of fact for jury.

Whether injuries sustained by plaintiff, death of his wife, and damage to his automobile were caused in second collision, after plaintiff's automobile collided with another automobile and whirled across street in front of defendant's on-coming bus, held question for jury.

In automobile collision case, admitting evidence relating to strength of automobile like plaintiff's to endure being capsized without serious damage, if error, held not prejudicial.

Prior inconsistent statements of witness can be shown for purpose of impeaching credibility.

Exclusion of prior inconsistent statements of plaintiff's principal witness relating to circumstances surrounding automobile collision held error.

Refusing to permit introduction of written statement by defendants' witness for use of plaintiff's counsel shortly after automobile accident, or to strike out all reference to it, held error.

Trial court's ruling relating to privilege of witness to explain how he came to make prior statements concerning automobile accident held not prejudicial.

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, instructions defining degree of care required of both plaintiff and defendant under the circumstances held not erroneous (Rev. St. Supp. 1931, 8--122).

Verdict awarding plaintiff $62,100 as damages for personal injuries, for death of wife, and for destruction of automobile, held so excessive as to evince passion and prejudice, precluding remittitur (Rev. St. 1923, 60--3001).

1. In an action to recover for personal injuries sustained by plaintiff and for the death of his wife and destruction of his automobile in a collision with defendants' motorbus, the record examined, and held that plaintiff's contributory negligence was a question for the jury, and not so clearly established as to make it a question of law.

2. Where plaintiff's automobile was proceeding southward on a public highway, and defendants' passenger bus was proceeding northward on the same highway, another automobile came from the west and collided with plaintiff's car, causing it to whirl across the road in front of the on-coming bus which crashed into it, error predicated on submitting to the jury a question of defendants' negligence to be determined on the action of the bus driver after he saw, "or could have seen," the plaintiff's car whirled across the road into the path of the on-coming bus, considered, and held nonprejudicial.

3. Under the circumstances which caused the plaintiff's automobile to be whirled over upon the wrong side of the road and into the path of the on-coming bus, an instruction that the jury should presume, "If there was no evidence to the contrary," that the driver of plaintiff's car was not negligent, was not so misleading as to be prejudicial.

4. The question whether the negligence of defendants as alleged by plaintiff was the proximate cause of the accident was one of fact for the jury's determination.

5. Error predicated on the trial court's refusal to direct a verdict in favor of defendants at the conclusion of the evidence considered and not sustained.

6. Error based on the admission of evidence touching the strength of an automobile like that of plaintiff to endure being capsized without serious damage considered, and held nonprejudicial.

7. Rule followed that prior inconsistent statements of a witness can be shown for the purpose of impeaching his credibility, and, in the circumstances stated in the opinion, the exclusion of such a statement was erroneous and prejudicial.

8. Error assigned on the overruling of a motion for a new trial based on newly discovered evidence tending to impeach the veracity of plaintiff's principal witness considered, but not decided because of conclusions otherwise reached in this appeal.

9. Objection to the form of the verdict submitted to the jury considered and not sustained.

10. Error assigned on the trial court's refusal to permit a witness to explain his prior inconsistent statement sustained.

11. Error based on the trial court's ruling touching the privilege of a witness to explain how he came to make his prior statement considered, and held nonprejudicial.

12. Errors based on various instructions considered and not sustained.

13. The verdict of the jury awarding plaintiff $62,100 as damages for his injuries and for the death of his wife and the demolition of his automobile considered, and held to be excessive, and manifestly given under such passion and prejudice that such verdict cannot be cured by a remittitur, following A. T. & S. F. Rld. Co. v. Cone, 37 Kan. 567, 15 P. 499; and that a judgment based thereon is erroneous and prejudicial.

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

Action by Charles E. Leinbach against the Pickwick Greyhound Lines, Inc., and another. Judgment in favor of the plaintiff, and the defendants appeal.

Reversed, and cause remanded for a new trial.

J. E. McFadden, and O. Q. Claflin, Jr., both of Kansas City, Kan., and Edmund H. McVey and Samuel R. Freet, both of Kansas City, Mo., for appellant Pickwick Greyhound Lines.

M. J. Healy, of Topeka, for appellant Orville L. Thompson.

Fred Robertson, Edw. M. Boddington, and J. O. Emerson, all of Kansas City, for appellee.

DAWSON J.

This was an action for damages for personal injuries sustained by plaintiff and for the death of his wife and for the destruction of his automobile in a collision with defendants' passenger bus on a public street and highway in the outskirts of Lawrence.

The locus in quo was as follows:

Seventh street in Lawrence, otherwise known as United States highway 40, runs north and south in the eastern part of North Lawrence. Lyons avenue runs east and west, about two blocks north of the Union Pacific main line and parallel with the railway tracks. Lyons avenue is a dirt street of usual width; Seventh street, or United States 40, is paved with an 18-foot concrete slab, with dirt shoulders 5 to 7 feet wide on each side. The ground thereabout is level. On the east side of Seventh street is a slight depression for drainage not deep enough to be called a ditch.

On a bright Sunday afternoon, July 13, 1930, defendants' passenger bus was proceeding northward on Seventh street on its regular intercity schedule. It had halted south of the railway, then crossed, gaining speed as it proceeded along the next two blocks. At the same time plaintiff's Dodge sedan, followed by three other cars, was proceeding southward, the Dodge in the lead. In the Dodge were plaintiff, Charles E. Leinbach, and a Mr. Stickel in the front seat, and plaintiff's wife and Mrs. Stickel in the rear seat. As the Dodge approached the intersection of Seventh street and Lyons avenue, a Ford roadster carrying three young people came from the west and collided with the Dodge, causing it to whirl around and head towards the north on the east side of the slab, right in the path of the on-coming bus which crashed into it. The Ford broke a wheel and landed on its side near the southeast corner of the intersection and caught fire. The occupants of the Ford were not seriously injured. Mrs. Leinbach and Mrs. Stickel were killed outright; Mr. Stickel died shortly afterwards, and the plaintiff Leinbach was severely, variously, and painfully injured. His Dodge sedan was virtually destroyed.

This lawsuit was brought against the proprietor of the bus and its driver Thompson, seeking to hold them responsible for the consequences which followed the double collision.

Plaintiff's petition gave his version of the facts at length. His cause of action was predicated on the theory that the effects of the collision between the Dodge and the Ford had ceased before the collision between the bus and the Dodge, and that the latter collision could have been avoided if the driver of the bus had promptly applied his brakes when he first saw, or could have seen, the Dodge in the path of danger ahead of him. Plaintiff's charges of negligence against defendants were; (a) Failure to turn the bus aside to avoid striking the Dodge; (b) failure to slacken speed and to bring the bus to a stop before the collision; (c) excessive speed, to wit, 40 miles per hour; (d) and (e) operating bus at higher speed than permitted by city ordinance; (f) defective brakes on the bus; (g) "the defendants were negligent in that the defendant Orville L. Thompson and the defendant Pickwick-Greyhound Lines, Inc.,...