Sawhill v. Casualty Reciprocal Exchange

• Decision Date: 07 December 1940
• Docket Number: 34925.
• Citation: 107 P.2d 770,152 Kan. 735
• Parties: SAWHILL v. CASUALTY RECIPROCAL EXCHANGE et al.
• Court: Kansas Supreme Court

107 P.2d 770

152 Kan. 735

SAWHILL v. CASUALTY RECIPROCAL EXCHANGE et al.

No. 34925.

Supreme Court of Kansas

December 7, 1940

Syllabus by the Court.

The physical facts of an automobile collision may be sufficiently clear to enable the triers of the fact to form a judgment of how the collision occurred and who was at fault, although there was no eyewitness to the collision.

In action by motorist for personal injuries sustained in a collision between his automobile and a truck at intersection evidence sustained finding that collision was result of truck driver's negligence, notwithstanding that there was no eyewitness to the collision, and that motorist and truck driver had no recollection as to how the collision occurred.

In action for injuries sustained in automobile collision at intersection, jury's answer, that it did not know at what speed plaintiff's automobile entered the intersection did not indicate that jury was not dealing fairly with the evidence, where there was no evidence from which the jury could have answered the question.

In action for personal injuries sustained in automobile collision at intersection, jury's reply, that it did not know the answer to the question whether plaintiff exercised ordinary care in driving into the intersection, did not require court to sustain defendants' motion for judgment on the answer, where defendants had alleged that plaintiff was negligent, since the burden was on the defendants to prove that plaintiff was negligent.

1. The physical facts of a motor-vehicle collision may be sufficiently clear to enable the triers of fact to form a judgment of how the collision occurred and who was at fault although there is no eye-witness to the collision.

2. It is futile to submit to a jury special questions which cannot be answered from the evidence.

3. In an action for damages sustained in a motor-vehicle collision the record contains substantial, competent evidence sufficient to support the findings, verdict and judgment for plaintiff.

Appeal from District Court, Cloud County; Tom Kennett, Judge.

Action by R. M. Sawhill against the Casualty Reciprocal Exchange and Leo Hubert for personal injuries allegedly sustained in an automobile collision, wherein Leo Hubert by cross-petition sought similar damages from the plaintiff. From a judgment in favor of the plaintiff, the defendants appeal.

Judgment affirmed.

Charles A. Walsh, of Concordia, for Leo Hubert, appellant.

C. W. Burch, B. I. Litowich, La Rue Royce, L. E. Clevenger, E. S. Hampton, and R. E. Haggart, all of Salina, for Casualty Reciprocal Exchange, appellant.

Robert Stone, James A. McClure, Robert L. Webb, Beryl R. Johnson, and Ralph W. Oman, all of Topeka, and Charles L. Hunt and Frank C. Baldwin, both of Concordia, for appellee.

HARVEY Justice.

This was an action for damages to plaintiff's automobile and for personal injuries he sustained in a collision of his automobile with the truck owned and driven by the defendant, Leo Hubert, which collision was alleged to have resulted from defendant's negligence. By answer and cross petition the defendant Hubert sought similar damages from plaintiff, alleging the collision was caused by his negligence. The jury answered special questions and returned a general verdict for plaintiff. Defendants have appealed.

The collision occurred in the northeast quarter of the intersection of two township highways which had been graded and which had dirt surfaces. Directly east and west of the intersection were culverts across the east and west roads, their surfaces level with the highway. At the north and south ends of these culverts were cement abutments about eight inches thick and three feet high. These were in the shape of an L and extended about four feet along the north and south road and eight or ten feet along the east and west road. The traveled road space between them was from 26 to 28 feet.

Plaintiff, engaged in the real estate and insurance business, owned and was driving a Chevrolet sedan north. The defendant, Leo Hubert, a contract carrier for hire, owned and was driving a Plymouth halfton truck east. His insurance carrier was joined as a defendant. The trust was loaded with four tractor wheels. John Le Clair was riding with him. See Le Clair v. Hubert, Kan., 107 P.2d 703, this day decided. When the motor vehicles came to rest after the collision, plaintiff's car, facing north, was astride the broken down cement abutment at the northeast corner of the intersection. Plaintiff was unconscious on the car seat and was taken to a hospital. At the trial he was unable to give any testimony as to how the collision occurred. Defendant's truck, headed northwest, was standing in the highway a short distance west and to the north of plaintiff's car. Le Clair and Hubert were lying on the east shoulder of the north and south road a few feet in front of plaintiff's car. Both were injured. They were able to get up soon, but were confused as to where they were and what had happened. Two of the tractor wheels were lying in the north and south road a short distance south of the intersection.

Witnesses who reached the scene of the collision soon after it occurred, testified there were tracks of the tires indicating plaintiff's car had been pushed sideways to the north and east against the cement abutment. Plaintiff's car had been struck on the left side, with the greatest force apparently striking it directly in front of the door, the damage to the car extending both forward and back of...