Reda v. Lowe

• Decision Date: 10 July 1959
• Docket Number: No. 41489,41489
• Citation: 342 P.2d 172,185 Kan. 306
• Parties: Mike REDA, Jr., Appellee, v. Morris LOWE, Appellant.
• Court: Kansas Supreme Court

Page 172

342 P.2d 172

185 Kan. 306

Mike REDA, Jr., Appellee, v. Morris LOWE, Appellant.

No. 41489.

Supreme Court of Kansas.

July 10, 1959.

Syllabus by the Court

The record is examined in an action for the recovery of damages for injuries sustained in an intersection collision between two trucks, and held that under the facts, conditions and circumstances set forth in the opinion, the trial court did not err: (1) in overruling the defendant's demurrer to the plaintiff's evidence; (2) in refusing to submit requested special questions; (3) in giving the special questions submitted to the jury; (4) in refusing to require the jury to give a more definite answer to a special question; (5) in overruling defendant's motion for judgment notwithstanding the general verdict; (6) in overruling defendant's motion for a new trial; and (7) in rendering judgment on the jury's verdict in favor of the plaintiff.

Herman W. Smith, Jr., Parsons, argued the cause, and Elmer W. Columbia and John B. Markham, Parsons, were with him on the briefs, for appellant.

Paul L. Wilbert, Pittsburg, argued the cause, and Pete Farabi, Pittsburg, and Charles E. Henshall, Chanute, were with him on the briefs, for appellee.

SCHROEDER, Justice.

This is a negligence action for damages arising out of an intersection collision between two trucks on the 17th day of October, 1955, in Neosho County, Kansas.

The primary question presented is whether the plaintiff's evidence establishes contributory negligence as a matter of law.

The plaintiff, Mike Reda, Jr., in his amended petition seeks damages for personal injuries to himself and for damages to his truck alleging negligence on the part of the defendant. The defendant, Morris Lowe, by his answer denies generally the allegations of the plaintiff's petition and pleads contributory negligence of the plaintiff as a defense. He further cross-petitions seeking damages for permanent injuries to himself and for damages to his truck alleging negligence on the part of the plaintiff.

With issues joined the case was tried to a jury and resulted in a verdict for the plaintiff and against the defendant in the sum of $7,715.25 with interest and costs. The defendant appeals.

The intersection in question is formed or embraced within the prolongation of the lateral boundary lines of two gravel roads which adjoined U.S. Highway No. 59. This highway approaches the intersection in question from the south and leads from the intersection in question to the west. The highway itself is blacktop and the distance from the blacktop highway, which curves around the corner, to the entrance of the intersection in question from both the south and the west is approximately 100 feet. The gravel roads forming the intersection were approximately of equal width and were described as from 18 to 20 feet in width.

The plaintiff's evidence, which consists solely of the plaintiff's testimony insofar as the record before this court discloses, indicates that he was 55 years of age at the time of the accident and engaged in the business of distributing beer with a place of business at Pittsburg, Kansas. At approximately 5:30 p. m., on October 17, 1955, the plaintiff was traveling east on U. S. Highway No. 59 approaching the intersection in question. The visibility was good, the day clear and the road dry. At this particular time and place the plaintiff approaching the intersection at about 25 miles per hour did not follow the blacktop highway which curved around the corner and went to the south, but proceeded directly east off the blacktop and into the gravel intersection. The plaintiff testified that as he started into the intersection the defendant's pick-up truck approaching from the south on the blacktop highway toward the intersection 'flew over the black top' coming at 'a terrible speed' which was described by the plaintiff in his testimony at different speeds ranging from 50 miles per hour to 80 miles per hour. He related that the two front wheels of the defendant's truck left the ground something like one and one-half feet. He testified:

'* * * I was about the center of the intersection; I gave him the horn to bring attention to him, and proceeded ahead as I was already past the intersection, and at a little bridge, east, I felt the bump; it struck and it threw me against the bridge on the north side and as my truck came loose, his spun around behind me, * * *'

The plaintiff further testified that he had entered the intersection first and had just gotten through the intersection; that the defendant did not hit him going straight but curved with the plaintiff who was across the intersection.

At the close of the plaintiff's testimony the defendant demurred to the evidence on the ground that the plaintiff's evidence established that he was guilty of contributory negligence as a matter of law. This demurrer was overruled.

The defendant testified:

'* * * I was going home from my work at the Union Elevator at the time of the collision. I was traveling on the black top about 35 miles per hour. I ran off of the black top where the road curves to the left, but I slowed down because of the intersection there. I noticed a red and white truck coming from the west. He was into the curve. As I approached the corner, I looked to the east and saw northing and by that time had run into the intersection and the truck hit mine. The Reda truck hit the front end of my truck on the left side in front of the left door. I entered the intersection first and the front of my bumper was half way across when we were struck in the center lane of the east and west road * * *'

He further testified:

'* * * I saw the Reda truck when it was on the black top. I seen him when I went on the curve. I thought he was going around 35.

'Q. That was when he was still on the black top on the curve; was he headed straight east? A. It looked like he turned and curved around and followed the black top.

'Q. That is when you last saw him? A. That is right.'

He also testified:

' * * * I did not honk my horn before the collision. At the speed I was going of 20 miles per hour, I believe that if I had applied my brakes at the distance of 15 to 20 feet south of the intersection I could have brought my car to a stop.'

Milford Hall was following approximately one-eighth of a mile behind the defendant on the highway at the time of the collision. He observed the collision and testified that the defendant's speed was around 25 to 30 miles per hour; that the defendant slowed his truck down to 5 to 10 miles per hour when he left the blacktop; and that these trucks came together in their own line of traffic. This would establish the point of collision in the southeast quadrant of the intersection. This witness, who was the first to arrive at the scene of the accident, further testified:

'Mr. Lowe [defendant] said to me right after the accident that he did not see the truck and Mr. Reda [plaintiff] said he saw the Lowe truck but thought it was going to stop * * *'

He further testified there was no sign that Mr. Lowe applied his brakes.

Other evidence presented by the defendant is immaterial to relate. At the close of the defendant's evidence the plaintiff demurred to the evidence of the defendant offered in support of his cross petition. This demurrer was overruled. The plaintiff then moved for a directed verdict which was also overruled.

Among the instructions given to the jury was the following:

'Instruction No. 9

'You are instructed that at the time of the collision referred to in this case there is in full force and effect the following statute of the State of Kansas:

'8-550: Vehicles approaching or entering intersections.

'(a) The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway.

'(b) When two vehicles enter an intersection from different highways at the same time the driver of the vehicle on the left shall yield the right of way to the vehicle on the right * * *.

'You are further instructed in this connection that the right of way at an intersection is not an absolute and inflexible right but a relative right. Its main purpose is to demand care of motorists commensurate with the danger of collision. The right of way and the right to assume absence of negligence by others may not be invoked by one who has violated the rules of the road himself by recklessly driving into an intersection without previously maintaining a reasonably careful lookout from places where he might have seen an approaching vehicle, in a manner which makes it impossible to avoid injury to himself and others.'

The following special questions were submitted by the court and answered by the jury as follows:

'1. Did the truck driven by Mr. Reda enter the intersection before the truck driven by Mr. Lowe? Answer: Yes.

'2. Did Mr. Lowe see the Reda truck as it entered the intersection? Answer: No.

'3. If your answer to Question No. 2 is No, then what, if anything, prevented Mr. Lowe from seeing the Reda truck? Answer: Nothing.

'4. Do you find that Mr. Lowe was guilty of any negligence as alleged in the amended petition, which was the proximate cause of the collision? Answer: Yes.

'5. If your answer to the foregoing question is Yes, then state what act or acts of negligence Mr. Lowe was guilty of? Answer: Failure to observe truck.

'6. Where was the point of collision between the two trucks with reference to the East side of the intersection? Answer: Just west of east side.

'7. Do you find that each truck entered the intersection at the same time? Answer: No '8. Where, with reference to the center of the intersection was the point of impact? Answer: South East.

'9. Do you find that plaintiff observed defendant's truck prior to the collision? Answer: Yes.

'10. If you answer Question No. 9 in the affirmative, please answer the following:

'(a) Where, with reference to the center of the intersection, was de...