Rierson v. Southern Kansas Stage Lines Co.

• Decision Date: 12 June 1937
• Docket Number: 33069.
• Citation: 146 Kan. 30,69 P.2d 1
• Parties: RIERSON v. SOUTHERN KANSAS STAGE LINES CO.
• Court: Kansas Supreme Court

69 P.2d 1

146 Kan. 30

RIERSON v. SOUTHERN KANSAS STAGE LINES CO.

No. 33069.

Supreme Court of Kansas

June 12, 1937

Syllabus by the Court.

Errors occurring during trial and which constitute ground for new trial, to be reviewable on appeal, must have been brought to attention of trial court on motion for new trial, and if such errors are not specifically pointed out in motion or on presentation of motion and no opportunity is given to court to correct errors, they will generally be regarded as waived.

Where charges are omitted from record, Supreme Court will presume that charges were correct and covered law of case, and requested instructions will not be considered.

Under statute providing that when special finding is inconsistent with general verdict, finding controls, bus company sued for injuries caused to motorist was not entitled to judgment notwithstanding verdict because jury found verdict in favor of bus driver, where jury in its findings of fact found that both driver and company were negligent (Gen.St.1935 60-2918).

An order sustaining or overruling a demurrer to evidence is a ruling on question of law and is appealable, and motion for new trial ordinarily is neither necessary nor proper (Gen.St.1935, 60-3302, 60-3306).

In action for injuries sustained by motorist when automobile which he was driving was struck by bus from rear at night whether motorist was struck by bus and whether bus driver was negligent were for jury.

1. Errors of the trial court occurring during the trial and which constitute grounds for a new trial, to be reviewable on appeal, must have been brought to the attention of the trial court on a motion for a new trial, and if such errors are not specifically pointed out in the motion or upon the presentation of the motion, and no opportunity is given to the court to reconsider and correct such errors, they will as a general rule be regarded as waived.

2. An order sustaining or overruling a demurrer to evidence is a ruling on a question of law. It is an appealable order, and a motion for a new trial ordinarily is neither necessary nor proper.

3. Where the charge of the court is omitted from the record this court will presume that the charges were correct and covered the law of the case and requested instructions will not be considered.

Appeal from District Court, Butler County; George J. Benson, Judge.

Action by Fred Rierson against the Southern Kansas Stage Lines Company. From a judgment for plaintiff, defendant appeals.

J. W Blood, F. W. Prosser, and A. M. Buzzi, all of Wichita, and J. B. McKay, of El Dorado, for appellant.

C. Glenn Morris and Stanley Taylor, both of El Dorado, for appellee.

ALLEN Justice.

This was an action for personal injuries sustained in a motor vehicle collision. Plaintiff recovered judgment, and defendant appeals.

The accident which resulted in injuries to the plaintiff occurred about 10 o'clock p. m. on the 9th day of July, 1935, on highway No. 77 at a point 5 miles south of Augusta. At that point the traveled portion of the highway was about 30 feet in width and level to the south for a distance of 1 mile. The plaintiff, Fred Rierson, was driving an automobile owned by him in a northerly direction on said highway. At the time in question one of the defendant's passenger busses was being driven by the defendant's driver, M. C. Schaeffer, in a northerly direction on the same highway. In plaintiff's petition, it was alleged that plaintiff was driving on the right-hand side of the highway at a speed of approximately 18 miles per hour. It was further alleged that defendant's bus approached the automobile driven by the plaintiff from the rear or south side and was driven with great force and violence into plaintiff's automobile, smashing and throwing it over, causing plaintiff to be violently thrown from the automobile to the highway, and thereby injuring him in the manner stated in the petition.

The negligence charged was that defendant's bus was being driven at a dangerous rate of speed, failure to give any signal of its approach, failure to turn the bus to the left in order to pass plaintiff's automobile, failure of the driver of defendant's bus to apply his brakes, and that the driver of defendant's bus was asleep at the time of the collision.

The case was tried by a jury and answers to special questions were returned. The special questions and answers pertinent in this appeal are as follows:

"Q. 1: What was the rate of speed of the Rierson automobile just immediately before the accident? A. Eighteen miles per hour.

"Q. 3: If your verdict is for the plaintiff, then state specifically of what act or acts of negligence the defendants were guilty. Answer fully. A. The bus driven by M. C. Schaeffer traveling at its regular rate of speed misjudged the rate of speed of the car ahead driven by Fred Rierson and failed to turn out soon enough to avoid crashing into rear end of car ahead causing accident.

"Q. 4: Was the plaintiff guilty of any act of contributory negligence? A. No.

"Q. 7: Where were the right wheels of the Rierson car with reference to the east edge of the surfaced portion of the highway as said car approached the site of the accident? A. Approximately 2 feet, 6 in. west.

"Q. 8: How wide was the surfaced portion of the highway at the site of the accident? A. Approximately 30 feet.

"Q. 9: How wide from the center of the wheels on one side to the center of the wheels on the other side was the Rierson car? A. 4 feet 8 3/4 in.

"Q. 10: What was the proximate cause of the accident? A. Misjudged distance and difference in speed rate.

"Q. 11. How many feet east of the center line of the surfaced portion of the highway were the left wheels of the Rierson car at the time of the collision? A. Seven feet, four inches, approximately.

"Q. 12: Did the Rierson car immediately prior to the accident turn or veer to the left? A. No."

The record shows that the defendant offered a demurrer to the evidence of the plaintiff which was overruled, and that thereupon the defendant rested without having introduced any evidence.

The jury returned a general verdict in favor of the plaintiff and against the Southern Kansas Stage Lines Company and assessed the damages at $2,556.50. The jury also returned a verdict in favor of the defendant, M. C. Schaeffer.

The record fails to show that defendant filed a motion for a new trial.

In Collins v. Morris, 97 Kan. 264, 155 P. 51, 52, it was said: "The purpose of a motion for a new trial is to inform the trial court what errors are relied upon in order that the court may, by granting a new trial, correct any error shown to exist. It would not be fair to the other litigant, nor fair to the trial court, nor to this court, if a defeated litigant were permitted to secure the reversal of a judgment on grounds not presented to the court below....