Revell v. Bennett

• Decision Date: 25 January 1947
• Docket Number: 36723.
• Citation: 176 P.2d 538,162 Kan. 345
• Parties: REVELL v. BENNETT.
• Court: Kansas Supreme Court

176 P.2d 538

162 Kan. 345

REVELL v. BENNETT.

No. 36723.

Supreme Court of Kansas

January 25, 1947

Appeal from District Court, Barton County; Robert Garvin, Judge.

Action by Willetta Revell against Tom Bennett to recover damages for personal injuries sustained in motor vehicle collision. Judgment for plaintiff, and defendant appeals.

Syllabus by the Court

1. In testing evidence on demurrer courts consider all of the evidence as true, consider the evidence favorable to, and disregard that unfavorable to, the party adducing it. They do not weigh any part of the evidence that is contradictory or any differences between portions thereof adduced on direct and cross-examination. When so considered, if there is any evidence which sustains a cause of action or defense, the demurrer must be overruled.

2. Where the facts are such that reasonable minds might reach different conclusions thereon a motion for a directed verdict must be denied.

3. The law requires the driver of a vehicle approaching a through highway to stop at the stop sign and to yield the right of way to the driver on such highway if the latter has entered the intersection or is approaching so closely as to constitute an immediate hazard. G.S.1945 Supp. 8-552.

4. Whether the driver of a vehicle on a through highway acted with reasonable diligence, after discovering the approaching truck driver was not stopping and was not yielding the statutory right of way, was a jury question under the facts narrated in the opinion.

5. The general rule of law requiring the driver of a vehicle to articulate his speed with his ability to stop within his range of vision does not apply where, in the exercise of due care, he is suddenly confronted with another vehicle unlawfully driven directly in front of him into an intersection over which, under facts admitted by a demurrer he had the right of way.

John A Etling, of Kinsley (W. N. Beezley, of Kinsley, and Wayne Lamoreux, of Great Bend, on the brief), for appellant.

Tudor W. Hampton and Melvin O. Nuss, both of Great Bend (S. R Blackburn, W. J. Glass, and Don C. Foss, all of Great Bend, on the brief), for appellee.

WEDELL Justice.

The plaintiff prevailed in an action to recover damages for personal injuries resulting from a collision of motor vehicles in an intersection of highways. The defendant appeals from orders overruling his (1) demurrer to plaintiff's evidence; (2) motion for a directed verdict; and (3) his motion for a new trial.

It is conceded the principal question presented is whether appellee was guilty of contributory negligence. Appellant concedes the burden of establishing such negligence ordinarily rests on the defendant but he relies upon the equally well-established doctrine that if a plaintiff's own evidence shows him to be guilty of contributory negligence, as a matter of law, a defendant may take advantage thereof by demurrer, citing Houdashelt v. State Highway Comm., 137 Kan. 485, 21 P.2d 343; Cruse v. Dole, 155 Kan. 292, 124 P.2d 470; Ray v. Allen, 159 Kan. 167, 152 P.2d 851.

The question, therefore, is did appellee's own evidence actually convict her of contributory negligence as a matter of law? She was the only eyewitness to testify concerning the collision. The pertinent portion of her direct examination, in substance, disclosed:

She was thirty-four years of age and the owner of a 1941 Mercury sedan coupe automobile; she was operating this car on the date of the collision, July 11, 1942; she had driven a car twelve years; Cleo Revell, who was her husband at that time, was asleep in the back seat; she was traveling west on U.S. highway 50 south, a paved road, at a speed of probably sixty to sixty-five miles per hour; after reaching a point approximately six miles west of Dodge City she observed two trucks on a dirt road approaching the paved road from the north; it was approximately 4:45 p. m., the day was clear and the paved highway was dry and in good condition; it was probably twenty-four feet wide, level and she could see a long way ahead; the trucks seemed to be coming down a slight decline; she first saw them when she was approximately one half to three quarters of a mile east of the intersection; the trucks were then approximately one fourth mile north of the intersection; the first truck stopped at the stop sign before entering the intersection; the stop sign was located north of the main highway; when she saw the first truck stop it made her more or less confident the second one would also stop; after stopping for approximately one second the first truck passed through the intersection; she was then about a quarter of a mile east of the intersection; the second truck was fairly close behind the first truck; the second truck did not stop at the stop sign; when she first observed the second truck was not stopping at the stop sign she was from fifty to seventy-five feet east of the intersection; she lifted her foot from the accelerator; her first thought was to apply the brakes and she thought she did so momentarily; she thought if she applied the brakes the collision would be certain; she then thought she could avoid the collision by pulling to the left and by not applying the brakes; the front end of the truck collided with the right front part of her car; the collision occurred in the south half of the intersection; C. C. Neill was driving the truck which struck her car.

Much of the cross-examination was a repetition of her testimony on direct examination. Other pertinent portions of her cross-examination, in substance, were:

She was not a very good judge of distance but thought it would have required about 600 feet to stop entirely at the speed she was traveling; she was probably nearer a half mile from the intersection when she first observed the trucks; her estimate was the trucks were traveling about twenty-five miles an hour; the second truck seemed to be traveling faster than the first one; she judged that when she first saw the trucks they were something like twenty-five to fifty feet apart; the second truck got closer to the first truck when that truck stopped at the intersection; she was rather sure she was more than a half mile east of the intersection when the first truck stopped at the stop sign; in attempting to avoid the collision she turned onto the south part of the intersection; the collision occurred a little to the west of the center of the north and south road; she tried to do what was best under the circumstances; the truck was traveling with the same speed at which it approached the intersection; the first truck stopped about twenty-five feet north of the highway; she was probably nearer three fourths of a mile east of the intersection when she first observed the trucks coming from the north; she was probably fifty to seventy-five feet east of the intersection when she observed the second truck was not stopping; the first truck had gotten safely across the intersection traveling south; she could not state definitely the distance it had traveled south by the time she collided with the second truck; her attention was on the second truck.

It is, of course, elementary that in testing evidence on demurrer courts consider all of the evidence as true, consider the evidence favorable to, and disregard that unfavorable to, the party adducing it. They do not weigh any part of the evidence that is contradictory or any difference between portions thereof adduced on direct and cross-examination. When so considered, if there is any evidence which sustains a cause of action or defense, the demurrer must be overruled. Sponsable v. Thomas, 139 Kan. 710, 33 P.2d 721; Hill v. Southern Kansas Stage Lines Co., 143 Kan. 44, 53 P.2d 923.

Appellant concedes that to be the rule. Let us apply the rule to the facts. Appellant contends when his truck operated by Neill ran through the stop sign, which sign according to appellee's testimony was located approximately twenty-five feet north of the paved road, appellee was at least 1000 feet east of the intersection; that appellee's conduct in proceeding towards the intersection at sixty to sixty-five miles per hour under these circumstances constituted a reckless disregard of duty and convicted her of contributory negligence as a matter of law.

Appellant arrives at the 1000 foot distance by an argumentative process. For present purposes let us, however, assume there was evidence which was susceptible of the interpretation that appellee was 1000 feet east of the intersection when appellant's truck ran through the stop sign. Appellant's argument therefor very properly could be, and undoubtedly was, made to the jury. The argument, however, is not good on demurrer. It fails to correctly apply the above stated rule applicable on demurrer in that it rests on portions of the evidence most unfavorable to appellee instead of portions thereof most favorable to her. The testimony most favorable to her discloses she was on a paved main highway and approximately fifty to seventy-five feet east of the intersection when she first observed appellant's, the second truck, was not stopping at the stop sign. It was then that appellee was first called upon to act on the truck driver's negligence. At sixty to sixty-five miles per hour appellee traveled at the respective distances of eighty-eight feet and 95.3 feet per second. She, therefore, reached the point of collision in less than one second after being apprised of the truck driver's violation of the law.

After appellee observed that fact what did she do and did such conduct convict her of contributory negligence as a matter of law? She lifted her foot from the accelerator. Her first thought was to apply the brakes and she thought she had done so momentarily. She then thought if she applied the...