Morris v. Hoesch, 45568

• Citation: 204 Kan. 735,466 P.2d 272
• Decision Date: 07 March 1970
• Docket Number: No. 45568,45568
• Parties: Ruth B. MORRIS, Appellant, v. Gloria HOESCH, a Minor, Appellee.
• Court: Kansas Supreme Court

Page 272

466 P.2d 272

204 Kan. 735

Ruth B. MORRIS, Appellant, v. Gloria HOESCH, a Minor, Appellee.

No. 45568.

Supreme Court of Kansas.

March 7, 1970.

Syllabus by the Court

1. The driver of a motor vehicle has the duty of keeping a proper lookout at all times, the extent of the observation being dependent upon the circumstances then existing, and such duty includes the obligation to keep a lookout for such vehicles even as may be negligently on the highway.

2. The driver of a motor vehicle upon a public street or highway, even though he be in law the favored driver, or the driver with the right of way, and even though he has the right to assume others traveling on the public street or highway will comply with the obligation imposed upon them, is not absolved of the consequence of his own independent negligent acts. He is required to regulate his use of the public street or highway by the observance of ordinary care and caution to avoid receiving an injury or inflicting an injury upon another. He has a duty to look ahead and see what there may be within his view which may affect his use of such street or highway and to keep a lookout for other users of such street or highway, and he is in law presumed to have seen and heard that which he could have seen and heard had he kept a proper lookout and exercised ordinary care and caution. His failure to use that degree of care and caution which an ordinarily careful and prudent person would exercise under the same or similar circumstances is negligence.

3. Upon appellate review this court accepts as true the evidence, and all inferences to be drawn therefrom, which support or tend to support the findings in the trial court, and disregards any conflicting evidence or other inferences which might be drawn therefrom. Where findings are attacked for insufficiency of evidence, or as being contrary to the evidence, this court's power begins and ends with determining whether there is evidence to support such findings. Where the jury's findings are so supported, they will not be disturbed on appeal. It is of no consequence there may have been contrary evidence adduced which, if believed by the jury, would have supported different findings.

4. Where the evidence in an intersection collision case is such that reasonable minds might differ on the question of negligence of either of the drivers, the issue is one for submission to the jury.

5. The record of trial in a negligence action arising out of an automobile collision is examined and it is held: The jury's finding of contributory negligence is sufficiently supported by the evidence, and certain evidence complained of was properly received at trial.

Arnold M. Mize, Derby, argued the cause, and Jerry L. Griffith, Derby, was with him on the brief for appellant.

Jerry G. Elliott, Wichita, argued the cause, and Mikel L. Stout, Wichita, was with him on the brief for appellee.

HARMAN, Commissioner.

This is a negligence action arising out of an intersection automobile collision. Judgment was entered on a jury verdict for defendant and plaintiffs has appealed.

At trial at the conclusion of the evidence the court instructed the jury defendant was negligent as a matter of law and it submitted to the jury the issues of contributory negligence and plaintiff's damages. The jury returned a general verdict for defendant. Defendant conceded at trial plaintiff suffered some injury as a result of the collision, and the parties now agree the jury verdict against plaintiff necessarily was based upon a finding of contributory negligence on the part of plaintiff and must stand or fall upon that basis.

Plaintiff contends the evidence was insufficient to support any finding of contributory negligence. Review of the evidence discloses the following:

James street in Derby, Kansas, is a through street forty feet wide, running east and west. It is intersected by Baltimore, a north and south street thirty feet in width. Both are two way streets. A 'Yield' right-of-way sign at the intersection controls traffic on Baltimore street approaching James street from the north.

On March 29, 1966, during the daylight hours, plaintiff was driving her 1957 Volkswagen bus east on James street. Defendant was driving her 1964 Oldsmobile station wagon south on Baltimore street at a speed of between fifteen and twenty miles per hour. As the approached the James street intersection defendant slowed down to almost a complete stop at the 'Yield' sign. She looked both directions and let a car approaching from the west go by the intersection. This automobile was driven by an acquaintance of defendant and the two recognized each other. Defendant looked west again and then proceeded south into the intersection at a very slow speed. She got almost through the intersection when she struck plaintiff's vehicle. Defendant did not see plaintiff's bus until she hit it. Plaintiff's vehicle was struck on the left side about in the middle. The point of impact was thirty-one feet two inches south of the north line of James street and eleven feet three inches east of the west line of Baltimore street. Defendant's vehicle did not travel after impact. Plaintiff's bus traveled southeast sixty-one feet up into a yard and into a car parked on Baltimore and then back across James street.

An investigating police officer arrived upon the scene soon after the collision. He detected the odor of alcohol on plaintiff while administering first aid and later taking her to receive medical attention. In her police accident report plaintiff stated she was traveling down James street at a speed of between twenty and twenty-five miles per hour and as her answer to the item 'Distance Danger Noticed' she indicated 'zero'. In the report she also stated: 'I never saw the (defendant's) car coming'. About one week prior to trial plaintiff told an examining doctor she did not see the approach of the other car prior to impact. At trial plaintiff testified she did see defendant's automobile approaching the intersection and she thought defendant was going to slow or stop at the intersection and the next thing she knew she woke up on the curb. She explained her failure to see defendant's car again: 'And then as I got on into the intersection; of course, the Volkswagen has no windows in it other than the window in the driver's door. * * * And then she got out of my line of vision as I got past, well, half-way past her'.

In her answer defendant...