Shepherdson v. Storrs

• Decision Date: 07 July 1923
• Docket Number: 24,659
• Citation: 114 Kan. 148,217 P. 290
• Parties: MAMIE SHEPHERDSON, Appellee, v. LAURA STORRS, Appellant
• Court: Kansas Supreme Court

217 P. 290

114 Kan. 148

MAMIE SHEPHERDSON, Appellee, v. LAURA STORRS, Appellant

No. 24,659

Supreme Court of Kansas

July 7, 1923

Decided July, 1923.

Appeal from Shawnee district court, division No. 2; GEORGE H WHITCOMB, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. COLLISION--Automobile and Buggy--Damages--Loss of Profits from Making and Selling Doughnuts. Testimony of the plaintiff in a personal injury as to the profits she had been earning from making and selling doughnuts is admissible as bearing upon the question of her loss on account of the time taken from that business. And it is not error to allow her to testify to the amount of such profits without producing the books which she had kept.

2. SAME--Negligence--Averments of Petition--Supported by Findings. An allegation of the petition that an automobile collision was caused by the negligence of the defendant in violating an ordinance giving the driver to the right the right of way is supported by a finding that the negligence of the defendant consisted in not looking for approaching vehicles from the right at a street intersection. And such a finding is held to have been supported by the evidence in this case.

3. SAME--Motion for New Trial--Newly Discovered Evidence. The newly discovered evidence produced in support of a motion for a new trial is held not to be such as to require the reversal of the order denying that motion.

4. APPEAL--Record of Proceedings--Not Supplemented by Affidavits Filed in this Court. The rule is applied that the record of the proceedings in the trial court cannot be supplemented on appeal by affidavits filed here.

Edwin D. McKeever, Arch M. McKeever, and Keene Saxon, all of Topeka, for the appellant.

S. L. Lashbrook, J. E. Addington, and Frank Doster, all of Topeka, for the appellee.

OPINION

MASON, J.:

On May 21, 1921, an automobile driven by Laura Storrs ran into a buggy driven by Mamie Shepherdson at a street crossing. On October 8, 1921, the latter sued the former on account of injuries received, recovering a judgment for $ 850, from which the defendant appeals.

1. Complaint is made of the admission of testimony of the plaintiff that at the time of her injury she had been receiving a profit of about $ 6 a day from making and selling doughnuts. One objection urged is that the evidence is too remote and speculative to form a basis for damages in breaking up her business. In overruling this the trial court said the evidence was not offered for that purpose, but to show what she was earning. It was competent upon that theory. (Railway Co. v. Scheinkoenig, 62 Kan. 57, 61 P. 414; 17 C. J. 895; Note, 9 A. L. R. 510.) The objection is also made that it was not the best evidence inasmuch as the plaintiff said she had kept books of the business which were at her home, which she did not produce in court, and which were not called for. We see no basis for reversal in this aspect of the matter. (Mensing v. Wright, 86 Kan. 98, 119 P. 374.) The amount was offered as an estimate or approximation. In many of the cases collected in the note above cited, the plaintiff's earnings were shown without reference to books.

2. To a question calling for the basis of the defendant's liability the jury answered: "For negligence in not using proper precaution on entering the intersection of the street. She was not looking for approaching vehicles from the right or north, or she would have seen the horse and buggy." It is contended that this is outside of any negligence pleaded and is not supported by any evidence. Among other grounds of negligence set out in the petition was the "violation of the rules of the road, as defined in section 7, paragraph b, of the ordinances of the city of Topeka, being ordinance numbered 4664, approved September 8 1916." Paragraph b of section 7 of that ordinance reads: "The ordinary rules of the road shall govern, and the driver to the right has the right of way." The plaintiff entered the intersection from the north, defendant from the east. The plaintiff therefore had the right of way, which implies that the primary obligation to prevent a collision was upon the defendant. If she did not look for a vehicle approaching from the north and this caused the accident (as the...