McDonald v. Yoder

• Decision Date: 10 April 1909
• Docket Number: 15,962
• Citation: 80 Kan. 25,101 P. 468
• Parties: J. N. MCDONALD v. GRACE YODER
• Court: Kansas Supreme Court

101 P. 468

80 Kan. 25

J. N. MCDONALD v. GRACE YODER

No. 15,962

Supreme Court of Kansas

April 10, 1909

Decided January, 1909.

Error from Neosho district court; OSCAR FOUST, judge, pro tem.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Control of Automobile Driven upon a Highway. Any person having control or charge of an automobile has the, right to drive it upon any public street or highway, but in so doing he must exercise every reasonable precaution commensurate with the apparent danger to prevent the frightening of horses and to insure the safety of any person riding or driving the same.

2. NEGLIGENCE--Duty to Look for Travelers--Presumption of Notice. It is the duty of one in charge of an automobile, driving. upon a public street or highway, to look ahead and see all persons and horses in his line of vision and in case of accident he will be conclusively presumed to have seen what he should and could have seen in the proper performance of such duty.

S. C. Brown, Bruce H. Grigsby, John J. Jones, and James W. Reid, for the plaintiff in error.

B. F. Shinn, H. P. Farrelly, and T. R. Evans, for the defendant in error.

OPINION

SMITH, J.:

Defendant in error recovered a judgment for damages for personal injuries against the plaintiff in error, who brings the case here for review. There are substantially two grounds of error assigned: First, that the court erred in overruling the demurrer to the plaintiff's evidence; second, that the court erred in denying the defendant's motion for a new trial.

It appears by the evidence that Miss Yoder and two other girls were riding on horseback in the little town of Earleton, going in a westerly direction along the main street, or road, when McDonald and his son, coming from the south, turned a corner 250 or 300 feet west from where the girls were at the time, and proceeded about the middle of the road toward the girls at a speed of from ten to thirteen miles an hour. The horses, especially the horse of Miss Yoder, manifested fright as soon as the automobile came in sight, but the automobile was driven toward them with unslackened speed and without turning to the right or left. It was broad daylight, and there was nothing to obstruct the view. Miss Yoder's horse, soon after seeing the automobile, turned and ran in a northeasterly direction, and was about to pass under a tree with a low-hanging branch when, to avoid being knocked off by the limb, she jumped to the ground and received the injury complained of. The automobile passed her about the time she jumped to the ground.

There was substantial evidence to support each of the foregoing facts before the demurrer to the plaintiff's evidence was filed. Considering these facts as admitted on the hearing of the demurrer to the evidence, we can not say that a prima facie right of recovery was not established. An automobile is recognized in law as a proper vehicle of transportation upon the public highways of the state. The operation of the machine, however, is subject to the "law of the road," as established by custom and by statutory enactment. Section 6 of chapter 67 of the Laws of 1903 reads as follows:

"Every person having control or charge of a motor vehicle or automobile shall, whenever upon any public street or highway and approaching any vehicle drawn by a horse or horses, or any horse upon which any person is riding or driving domestic animals, operate, manage and control such motor vehicle or automobile in such manner as to exercise every reasonable precaution to prevent the frightening of any such horse or horses or domestic animals and to insure the safety and protection of any person riding or driving the same; and, if such horse or horses or...