Phillips v. The Meyer Sanitary Milk Company

• Decision Date: 09 November 1929
• Docket Number: 28,613
• Citation: 281 P. 895,129 Kan. 45
• Parties: FRANK PHILLIPS, Appellee, v. THE MEYER SANITARY MILK COMPANY, Appellant
• Court: Kansas Supreme Court

281 P. 895

129 Kan. 45

FRANK PHILLIPS, Appellee, v. THE MEYER SANITARY MILK COMPANY, Appellant

No. 28,613

Supreme Court of Kansas

November 9, 1929

Decided July, 1929.

Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. HIGHWAYS--Proper Care on Street--Leaving Team Unhitched. The leaving of a team of mules attached to a milk wagon upon a street of the city unattended and unfastened, which turned out suddenly in front of a coming automobile being driven along the street, and when the automobile was within three or four feet of the team and wagon, the mules turned suddenly out in front of the automobile and a collision followed, afforded ground for a finding that the owner of the mule team was guilty of actionable negligence.

2. SAME--Contributory Negligence--Evidence. The evidence submitted is held to be sufficient to uphold a finding that the plaintiff was not guilty of contributory negligence.

3. SAME--Violation of Speed Regulation. The rule applied that the violation of a speed regulation does not constitute actionable negligence, nor constitute contributory negligence, unless it contributes to the injury suffered in a collision of an automobile and another vehicle on a city street.

4. SAME--Instructions. Instructions examined and held to be without material error.

5. SAME--Award of Damages. A claim that the damages awarded by the jury are excessive is held to be without merit.

David F. Carson, of Kansas City, for the appellant.

Joseph Cohen, of Kansas City, for the appellee.

OPINION

JOHNSTON, C. J.:

Frank Phillips sued the Meyer Sanitary Milk Company to recover damages for injuries sustained in a collision of a milk wagon drawn by a pair of mules, belonging to the defendant, with an automobile which the plaintiff was driving. The collision occurred about 5:30 on the morning of October 30, 1927, which is alleged to have been a dark, foggy morning. The milk wagon was parked on Valley street near the intersection of Ridge street, and the team and wagon were left there unattended and unhitched to any post or other object. It was alleged that plaintiff was driving his automobile along Valley street and that just as he approached the milk wagon the mules turned suddenly out in front of his automobile with the result that there was a collision from which plaintiff suffered severe injuries. The negligence imputed to the defendant was that the team of mules was left unattended, that there was no light on the milk wagon, no signals given, and that the mules were not hitched to any post or other standard to prevent them from turning out into the street. The defendant contended that the collision was due to careless driving by plaintiff, that he drove on the wrong side of the street, that there was a street light near the point where the milk wagon was left, that he was under the influence of intoxicating liquor and was driving at a speed greater than a city ordinance prescribed. The jury returned a verdict in favor of the plaintiff awarding him damages in the sum of $ 1,000 and with the verdict returned answers to special questions submitted by the court, which are as follows:

"1. Was there a lighted street light on the southeast corner of Ridge avenue and South Valley street on the night of October 30, 1927? A. Yes.

"2. If you answered question No. 1 yes, was the team and wagon of the defendant stopped on the side of the street under this light on the morning of October 30, 1927? A. Yes.

"3. Did said team and wagon remain standing there until struck by the plaintiff? A. No.

"4. Did plaintiff cross the intersection of Ridge avenue and South Valley street going at the rate of twelve miles or more per hour? A. Yes.

"5. If the plaintiff had been looking, was there anything to prevent him from seeing the team and wagon for a distance of fifty feet before he struck the same? A. Yes.

"6. If you find the defendant guilty of negligence, state fully of what this negligence consisted? A. Leaving team and wagon on public street without attendance.

"7. Did the plaintiff drive his car at and immediately prior to the accident on the wrong side of the street? A. No.

"8. Was the plaintiff under the influence of liquor at the time of the collision between his motor car and the team and wagon of the defendant? A. No.

"9. Was the plaintiff guilty of contributory negligence? A. No."

As will be seen, the jury has negatived most of the contentions of the defendant. It is specifically found that plaintiff was not driving on the wrong side of the street, that he was not intoxicated, and that he was not guilty of contributory negligence. The leaving of the team unattended or insecurely fastened afforded ground for the jury to find that defendant was negligent. In Mastin v. Levagood, 47 Kan. 36, 41, 42, 27 P. 122, it was said:

"The owner of a horse and cart who leaves them unattended in the street is liable for any damage which may result from his negligence." (p. 41.)

The leaving of a team unattended is not under all circumstances negligence per se. The omission is a question for the jury to find whether under the circumstances of the case it constitutes actionable negligence. (Lawson v Brokmann, 116 Kan. 102, 226 P. 252.) The verdict of the jury settles the question that the leaving of the team unattended was...