Letcher v. Derricott
| Decision Date | 10 July 1963 |
| Docket Number | No. 43152,43152 |
| Citation | 383 P.2d 533,191 Kan. 596 |
| Parties | Catherine LETCHER, Appellee, v. Richard Rubin DERRICOTT, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The record is examined in an action for recovery of damages for injuries sustained in an intersection collision between a pedestrian and an automobile, and held that under the facts, conditions, and circumstances of this case, the trial court did not err: (1) in overruling the defendant's demurrer to plaintiff's evidence; (2) in refusing to direct a verdict in favor of defendant; (3) in instructing the jury on contributory negligence and the last-clear-chance doctrine; (4) in restricting hearsay evidence contained in a police officer's investigation report, and (5) in rendering judgment on the jury's verdict in favor of the plaintiff.
J. Milton Sullivant, Kansas City, argued the cause, and Lewis C. Smith, Gerald L. Rushfelt, Clifford T. Mueller, John R. Oliver, and William L. Roberts, Kansas City, were with him on the briefs for appellant.
Charles S. Schnider and Joseph P. Jenkins, Kansas City, argued the cause, and Joseph Cohen, John E. Shamberg, Norma Braly, Barton P. Cohen, Jacob F. May, Jr., and Frederick K. Cross, Kansas City, were with them on the briefs for appellee.
The opinion of the court was delivered by
HATCHER, Commissioner.
This is an action for damages as the result of personal injuries suffered by a pedestrian when struck by an automobile.
The action was instituted by Mrs. Catherine Letcher, as plaintiff, against Richard Rubin Derricott, the owner and driver of an automobile which struck plaintiff as she was attempting to cross a street.
The petition alleges in substance that while the plaintiff was crossing 18th Street in Kansas City, Kansas at a point where 18th Street is entered by Homer Street, she was struck by an automobile which was being carelessly, recklessly, and negligently operated by the defendant. The plaintiff was seriously injured. The usual grounds constituting negligent driving were alleged. The petition further alleges that plaintiff was not negligent in crossing the street, but that if it should be found that she was negligent, her negligence had ceased at the time of the injury, and that the defendant could have, with ordinary care, seen the plaintiff in a position of danger from which she could not extricate herself, and by the exercise of ordinary care avoided striking her. The prayer was for damages in the amount of $100,000 and costs.
The defendant answered denying that he was guilty of any negligence and stating that plaintiff was guilty of negligence which caused her injuries. The answer specifies the usual acts constituting negligence by a pedestrian crossing a street. The answer further alleges that the defendant was confronted with a sudden emergency not of his own making and that he attempted to exercise his best judgment to avoid colliding with plaintiff.
The jury answered special questions and returned a general verdict in favor of the plaintiff in the sum of $50,000. The verdict was approved by the trial court. The defendant has appealed specifying twelve trial errors.
The appellant contends that the trial court erred in failing to sustain the demurrer to plaintiff's evidence, in failing to direct a verdict for the defendant at the close of all of the evidence, and instructing the jury on the last-clear-chance doctrine for the reason that the plaintiff was guilty of negligence as a matter of law which was the proximate cause of, or contributed to, her injuries.
The contentions require a review of the evidence. The evidence will be considered in considerable detail, as most of the questions raised are affected by the facts to be presented.
18th Street runs north and south through the city of Kansas City, Kansas. At the area in controversy, it is sixty-four feet in width. Running through the center of the street is a medial strip approximately five inches or six inches in height and four feet wide separating the north and south bound traffic. Homer Street enters 18th Street from the west and comes to an end forming a 'T.' This street is twenty-six feet three inches in width. Where Homer Street enters 18th Street there is a break in, or an absence of, the raised medial strip for a distance of eighty-nine feet five inches for the purpose of permitting the north bound traffic on 18th Street to turn onto Homer Street and for the eastbound traffic on Homer Street to turn onto 18th Street going north. There was no marked cross-walk for pedestrians at the area in question.
On April 24, 1961, between 8:30 and 9:00 P.M., the appellee, a woman of approximately 55 years of age, started to cross 18th Street from west to east. She was accompanied by her husband, some 75 years of age, and in ailing condition. They started to cross 18th Street at a point north of Homer and proceeded to a point in the center of the street, a short distance south of the north break in the medial strip. The area was unusually well lighted by street lights and also by flood lights and spot lights at filling stations on both sides of the street. 'The lighting condition in the area was pretty near next to daylight; just as clear as it would be during the day.'
The distance from the 30 miles per hour speed limit sign on the east side of 18th Street to the south edge of the space between the medial strips was 1100 feet.
The facts, as stated up to this point, are not in dispute. The remaining facts are in dispute to the extent that numerous, although honest, witnesses differ in what they saw at the scene of the accident. Before continuing with the disputed testimony, it will be well to pause here and consider the law which guides us in the consideration of the testimony on the questions involved.
In reviewing a ruling on a demurrer to the evidence, this court does not weigh or compare contradictory evidence. It considers only such portions of the evidence as are most favorable to the party adducing it. It then considers such evidence in the light most favorable to the party against whom the demurrer is directed and gives it the benefit of all inferences that may be drawn therefrom. (Haga v. Moss, Administrator, 181 Kan. 171, 311 P.2d 281.)
The rule is stated in Reda v. Lowe, 185 Kan. 306, at page 311, 342 P.2d 172, at page 177, in the opinion:
In Krentz v. Haney, 187 Kan. 428, 357 P.2d 793, it is stated:
'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 submitted to the jury if the facts of record are such that reasonable minds, in the exercise of fair and impartial judgment, might reach different conclusions thereon. Moreover, the question whether a negligent act is the proximate cause of an injury and whether an ordinarily reasonable and prudent man would have seen that injury might have occurred as the result of a negligent act is also a question for a jury. Mr. Chief Justice Dawson, in speaking for this court in Harshaw v. Kansas City Public Ser. Co., 154 Kan. 481, 485, 119 P.2d 459, 462, stated, 'It is only in clear cases which require no subtleties of reasoning that contributory negligence becomes a matter of law.'' (187 Kan. p. 430, 357 P.2d p. 795.)
In considering the demurrer to plaintiff's evidence and the motion for a directed verdict at the close of all the evidence, it must also be understood that the plaintiff invoked the humanitarian or last-clear-chance doctrine. If the plaintiff had by her own negligence placed herself in a position of peril from which she could not extricate herself, the defendant had the duty to exercise due care to avoid injuring plaintiff if he had a last clear chance to do so.
This also presents a question for the jury, and a reviewing court considers the evidence on demurrer under the same rules as those heretofore announced.
In Gibbs v. Mikesell, 183 Kan. 123, 325 P.2d 359, it was held:
In the opinion the court stated:
(183 Kan. p. 130, 325 P.2d p. 366.)
The use of the phrase 'that plaintiff's negligence had ceased' has caused some confusion. The phrase means, and perhaps the better term is, 'that the plaintiff had, by her own negligence, placed herself in a position of peril from which she could not extricate herself.' If the plaintiff...
To continue reading
Request your trial
-
State v. Cox
...grounds for the objection, that no hearsay exception applies, is sufficient to preserve the issue for appeal. In Letcher v. Derricott, 191 Kan. 596, 603-04, 383 P.2d 533 (1963), we upheld the exclusion of a page of a filed police report of an investigation of an accident, which consisted of......
-
McElhaney v. Rouse
...have been announced in numerous decisions of this court. The most recent treatment of the subject was made in Letcher v. Derricott, 191 Kan. 596, 383 P.2d 533, in which the elements as stated in Gibbs v. Mikesell, 183 Kan. 123, 325 P.2d 359, were quoted as 'The essential elements under the ......
-
Pacific Indem. Co. v. Berge
...(Syl. 1.) See, also, State v. Taylor, 198 Kan. 290, 424 P.2d 612; State v. Foster, 198 Kan. 52, 422 P.2d 964; and Letcher v. Derricott, 191 Kan. 596, 383 P.2d 533. In their brief plaintiffs cite generally the exceptions to the hearsay rule set out in K.S.A. 60-460(d), (g), (m) and (o), as s......
-
Wegley v. Funk
...have been announced in numerous decisions of this court. The most recent treatment of the subject was made in Letcher v. Derricott, 191 Kan. 596, 383 P.2d 533, in which the elements as stated in Gibbs v. Mikesell, 183 Kan. 123, 325 P.2d 359, were quoted as "'The essential elements under the......