Robles v. Central Sur. & Ins. Corp.

• Decision Date: 08 July 1961
• Docket Number: No. 42225,42225
• Citation: 363 P.2d 427,188 Kan. 506
• Parties: Refugio ROBLES, Appellant, v. CENTRAL SURETY & INSURANCE CORPRATION, Transcontinental Bus System, Inc., and Raymond Avelar, Appellees.
• Court: Kansas Supreme Court

Page 427

363 P.2d 427

188 Kan. 506

Refugio ROBLES, Appellant, v. CENTRAL SURETY & INSURANCE CORPRATION, Transcontinental Bus System, Inc., and Raymond Avelar, Appellees.

No. 42225.

Supreme Court of Kansas.

July 8, 1961.

Syllabus by the Court.

1. The supreme court does not sit as a trier of the facts, and upon appellate review

accepts as true the evidence and all inferences which support, or tend to support, the special findings, verdict, and judgment below, and disregards any conflicting evidence or other inferences which might be drawn therefrom. If there is any evidence to sustain the special findings, verdict, and judgment, they cannot be set aside. It only is necessary to consider whether there is substantial evidence upon which the special findings, verdict, and judgment are based, and a consideration or recital of the contradictory evidence cannot aid in correctly determining that question.

2. It devolves upon the party appealing to bring up a complete record of all matters upon which review is sought.

3. The question whether a district court erred in refusing or failing to give requested instructions is not reviewable unless all the instructions given are made a part of the record on appeal. Likewise, questions as to the propriety of particular instructions given by the district court over specific objections of the party are not reviewable where only the challenged instructions are combined in the record. The latter rule is subject to the exception that such instructions may be reviewed if they are clear and prejudicial misstatements of the law.

4. The record in an action to recover damages for personal injuries sustained in an automobile-bus collision at the intersection of a transcontinental highway and a country road on which stop signs control traffic into the intersection, pleaded and tried by plaintiff on the theory he was a guest in the automobile and that the ownerdriver was guilty of gross and wanton negligence which was a proximate cause of his injuries, examined, and it is held: (1) The special findings of the jury and its general verdict for the defendants were supported by substantial competent evidence; (2) the special findings were not inconsistent with each other, and supported the general verdict; (3) failure of plaintiff to include in the record on appeal all of the instructions given by the district court precludes him from asserting error in connection with the alleged erroneous instructions given and requested instructions which were refused, and (4) the district court did not err in overruling plaintiff's motion for a new trial.

Clarence N. Holeman, Wichita, argued the cause, and Wendell E. Godwin, Wichita, was with him on the briefs, for appellant.

Gerald Sawatzky, Wichita, argued the cause, and George B. Powers, Carl T. Smith, John F. Eberhardt, Stuart R. Carter, Robert C. Foulston, Malcolm Miller, Robert N. Partridge, Robert M. Siefkin, Richard C. Harris, Donald L. Cordes and Robert L. Howard, Wichita, were with him on the briefs, for appellees Central Surety and Ins. Corp. and Transcontinental Bus System, Inc.

John E. Rees, Wichita, argued the cause, and Wayne Coulson, Paul R. Kitch, Dale M. Stucky, Donald R. Newkirk, Robert J. Hill, Gerrit H. Wormhoudt, Philip Kassebaum, Robert T. Cornwell, Willard B. Thompson and David W. Buxton, Wichita, were with him on the briefs, for appellee Raymond Avelar, Hugo T. Wedell and Homer v. Gooing, Wichita, of counsel.

FATZER, Justice.

This was an action for damages by the plaintiff-passenger of an automobile against the driver, Raymond Avelar, and the Transcontinental Bus System, Inc., and its public liability insurance carrier, arising out of a collision when the automobile was driven onto U. S. Highway 81 in front of the oncoming bus. The jury answered special questions and, by general verdict, found in favor of the defendants. Plaintiff has appealed from the judgment entered on the jury's verdict and special findings, and from orders overruling his motions for a new trial and to set aside the verdict and special findings.

The accident occurred on October 21, 1956, at about 11:30 p. m. at the intersection of U. S. Highway 81 and 77th Street North, north of Wichita. U. S. 81 is a hard surfaced, four-lane, north-south transcontinental highway, and traffic is controlled on 77th Street, an east-west graveled country road, by stop signs at the intersection.

Pertinent portions of the testimony, and the events leading up to the accident, are summarized and quoted: Plaintiff Robles and defendant Avelar were married to sisters. About 3:30 p. m. on the day of the accident Avelar drove his wife to Robles' residence to visit Mrs. Robles who was ill. Avelar did not go into the house, but Robles came out. They talked for awhile, and Avelar asked Robles whether he wanted to 'stick around here or shall we go for a ride.' Robles said, 'lets go for a ride.' They left in Avelar's 1951 Chevrolet. There was no purpose for their trip other than pleasure, and Avelar drove the car the entire time. After leaving the Robles residence they encountered two men who had some 'corn liquor.' Both Robles and Avelar accepted a drink which was offered. Avelar bought a half pint of the liquor from the two men and all four men had a drink. After some visiting, Robles and Avelar 'talked to decide' whether they would go see a friend of Avelar's. They drove to the friend's residence and visited there with three men. Robles drank some wine and the men talked. Later, Robles and Avelar left and drove into the country northeast of Wichita to look over their old fishing and hunting grounds and discussed the possibility of building a shack, and talked about many matters of mutual concern to themselves. They both drank from the half pint, and emptied it. They continued to drive, and intermittently stopped and talked. Finally, they decided to return home. Robles was sitting in the front seat, and while going west on 77th Street, he said to Avelar, 'I think I will crawl into the back and take a nap,' and he moved from the front seat into the back seat. Avelar testified he did not know whether Robles went to sleep or stayed awake. Robles did not testify on his own behalf. The evidence was that the car was moving when Robles crawled into the back seat and Avelar continued west on the country road, driving 30 to 40 miles per hour.

When Avelar reached the immediate vicinity of the stop sign on 77th Street east of the intersection, a long pile of sand and gravel obstructed his view to the north of southbound traffic on the highway. While the evidence was conflicting whether the stopped at the stop sign before proceeding into the intersection, the jury resolved that question in Avelar's favor by finding that he did stop. At any rate, after stopping, Avelar suddenly drove his automobile across the highway directly into the path of the oncoming bus which was traveling south on the inside lane of the southbound trafficway. Witnesses described the movement of Avelar's automobile as, 'the car just darted across the road,' and 'ran into the left front of the bus.' Prior to the collision the bus had been traveling between 50 and 55 miles per hour, and was on schedule. The bus driver had no time or opportunity to avoid the collision and was only able to begin braking, and turned the bus slightly to the east before the collision occurred. There was evidence the bus was traveling 38 miles an hour at the time of the accident. As a result of this unfortunate occurrence Robles was severely injured. His spinal cord was severed, and he is permanently paralyzed from the waist down and will be confined to a wheel chair for the rest of his life.

After the accident Avelar was arrested and pleaded guilty to driving while under the influence of intoxicating liquor. It was stipulated that an alcoholic test was made on him which showed his blood to contain .18 percent alcohol. Plaintiff was taken to a hospital and the observation of the nurse in charge when he was admitted was that 'the patient had been drinking prior to the accident.'

Answers by the jury of pertinent special questions are summarized and quoted: Avelar stopped at the stop sign east of the intersection and when he did so, his automobile was not visible to the driver of the southbound bus. He was unfamiliar with the intersection and did not realize danger was imminent as he entered the intersection, and when he entered it, the bus was so close as to constitute an immediate hazard and its driver had no time or opportunity to avoid the accident. No finding of negligence was made against the bus company or the insurance company, and Avelar was found not to be guilty of gross and wanton negligence which was a proximate cause of plaintiff's injuries. Question No. 8 and its answer are quoted:

'Q. Was the plaintiff's failure to exercise due regard for his own safety a proximate cause of his own injury? A. Yes.'

The legal effect of the finding was that plaintiff was guilty of negligence which was the proximate cause of his injuries, and barred his right to recover against Avelar for ordinary negligence.

No objections were made to any of the special questions submitted, and the answers given by the jury were accepted by the court. Plaintiff moved to set aside the general verdict and the answers to the special questions on the ground they were not supported by evidence, and for a new trial, specifying numerous grounds. Those motions were overruled, and judgment was entered in favor of the defendants.

Plaintiff first argues the general verdict for the defendants and answers to special questions should be set aside because they are not supported by the evidence. In support of the contention, plaintiff advances certain arguments and theories which were presented to the jury, based upon his version of the evidence from his own witnesses, some of whom gave expert testimony. This was purely a fact case, and we deem it unnecessary to...