Schneider v. Stewart, 38020

• Decision Date: 10 November 1950
• Docket Number: No. 38020,38020
• Citation: 223 P.2d 698,170 Kan. 158
• Court: Kansas Supreme Court
• Parties: SCHNEIDER v. STEWART et al.

Page 698

223 P.2d 698

170 Kan. 158

SCHNEIDER v. STEWART et al.

No. 38020.

Supreme Court of Kansas.

Nov. 10, 1950.

Rehearing Denied Dec. 16, 1950.

Syllabus by the Court.

1. In an action to recover damages alleged to have been sustained when two automobiles collided at an intersection, it is held the plaintiff arrived first at the intersection and proceeded to enter it and whether she was guilty of contributory negligence so as to bar her right to recover was, under all facts and circumstances, a question for the jury to determine.

2. In an action such as that described in the first paragraph of this syllabus, the trial court sustained defendants' demurrer to plaintiff's evidence and subsequently sustained plaintiff's motion for a new trial; the defendants appealed from the order allowing plaintiff's motion for a new trial--Held, we will treat the order sustaining the motion for a new trial as tantamount to overruling defendants' demurrer to the evidence and we will consider the appeal on its merits.

Arnold C. Todd, of Wichita, argued the cause, and D. Emmett Foley, of Wichita, was with him on the brief, for the appellants.

Claude E. Sowers, of Wichita, argued the cause and was on the brief for the appellee.

SMITH, Justice.

This was an action for damages alleged to have been sustained when two automobiles collided at a street intersection. The trial court sustained defendants' demurrer to plaintiff's evidence and subsequently granted plaintiff a new trial. The defendants have appealed from the order granting a new trial.

The plaintiff alleged in her petition that about 4:20 p. m. she was driving an automobile east on Third Street, in Wichita, at approximately ten miles per hour; that as she approached the intersection of Emporia and Third Streets she slowed down to five miles an hour; that no automobiles were near the intersection from the north or south, and she proceeded to enter and cross Emporia, in the south lane of traffic on Third Street, and that when she arrived in the southeast quarter of the intersection, proceeding east, one of the defendants drove an automobile owned by the Globe construction Company at approximately forty miles an hour into the right rear end of her automobile, causing her to be injured. She alleged that the collision was caused by the negligent acts of the defendant driver in driving their automobile in such a manner as not to avoid injuring others using the street and in driving the automobile with such speed, considering the weather and icy condition of the streets, as to endanger the life and person of this plaintiff; in driving the automobile at a greater rate of speed than was reasonable and safe having due regard for the use and condition of the streets and contrary to Ordinance No. 12-231, Section 27(b), which is as follows:

'Section 27. Speed. It shall be unlawful to operate any vehicle at greater rate of speed in the City of Wichita, than the following:

'(b) Twenty-five (25) miles per hour upon all residential streets other than right-of-way streets, also, upon East Douglas Avenue from Washington Avenue to Kansas Avenue; Washington Avenue from Waterman Avenue to Central Avenue, and except as hereinafter provided.

'Provided, However, that no driver in any event shall drive at a greater rate of speed than is reasonable, safe and proper having due regard for the use and condition of the street and the occupancy thereof, at the time not at such a rate of speed as to endanger the life, limb and property of any person.'

She alleged her injury was caused by one of defendants driving his automobile so as to not yield the right of way to her, since she had already entered the intersection and was about to clear it at the point of impact, and contrary to Ordinance No. 12-321, Sec. 41(e) as follows: 'The driver of a vehicle approaching an intersection shall yield the right-of-way to vehicle which has entered the intersection from a different highway.' She alleged that all of the negligent acts on the part of the defendants were the sole and direct cause of her injuries. She prayed judgment in the amount of $9,835.

The defendants answered, admitting the collision, and denying that it was caused by the negligence of the driver of defendants' car; alleged that the streets at the intersection were covered with snow and ice and slippery, and it was necessary for the drivers to proceed with caution and to keep their automobiles under reasonable control and keep a lookout; that on the day in question the defendant, who was driving, saw a car was approaching the intersection at fifteen miles an hour and that as he approached it he made careful observation concerning the traffic; that he saw a car on his right, which was stopping at the intersection in order to give way to the north and south traffic on Emporia Avenue and he also observed a car approaching from the west, which was at that time fifteen or twenty feet west of the intersection; that the car driven by plaintiff was proceeding at a high rate of speed in excess of thirty miles an hour and it became apparent to him that plaintiff was not going to slacken the speed of her car and yield the right of way to him; that he applied his brakes in an effort to avoid the collision, but plaintiff did nothing to retard the speed of her car and drove it directly in the path of his car, and as a result the car being driven by defendant was damaged. He alleged that plaintiff was guilty of negligence, which was the sole and proximate cause of the collision, in driving her automobile on the occasion of the collision in such a manner and at such a speed, considering all the existing circumstances, as to endanger the property of the defendants and other vehicles lawfully using the street; and in driving her automobile at a greater rate of speed than was reasonable and safe, having due regard for the use and condition of the streets and the occupancy thereof by the defendants; and in driving her automobile at a greater rate of speed than was permissible under the law and in failing to keep such a lookout for other users of the streets and exercising such care for other users of the streets as required by law; and in failing to yield the right of way to the defendant Curry under the circumstances existing immediately prior to the collision.

By way of cross petition, the defendants referred to their answer and alleged that the collision was caused solely by the negligence of plaintiff and but for that negligence there would have been no collision, and defendants were damaged in the amount of $204.83, for which they prayed judgment.

The plaintiff denied in her reply all the allegations in the answer, which were inconsistent with her petition, and specifically denied that defendants had the right of way, but alleged that she had the right of way.

Subsequently the defendants filed an amendment to their answer, wherein they alleged that if the driver Curry was guilty of negligence then the negligence of the plaintiff, which had been alleged, constituted contributory negligence, which was the proximate cause of the collision.

At the trial plaintiff testified that as she approached Emporia Avenue driving east on Third Street she slowed up at the intersection; the streets were icy; she was going ten to fifteen miles an hour; she looked both ways; no cars were in sight and she proceeded on across the intersection; she had started to cross the...