Shrout v. Bird

• Decision Date: 09 April 1932
• Docket Number: 30425.
• Citation: 9 P.2d 673,135 Kan. 218
• Parties: SHROUT v. BIRD. [*]
• Court: Kansas Supreme Court

9 P.2d 673

135 Kan. 218

SHROUT v. BIRD. ^[*]

No. 30425.

Supreme Court of Kansas

April 9, 1932

Syllabus by the Court.

In pedestrian's action for personal injuries sustained when struck by defendant's delivery truck, special findings held not inconsistent with general verdict for plaintiff, nor to require judgment for defendant.

Contributory negligence of pedestrian struck by defendant's delivery truck at street intersection held question for jury.

Review on appeal is limited to record made of trial under review.

Appellate court cannot consider matters developed at prior trial or in companion case which have not been properly brought into record.

In pedestrian's action for personal injuries sustained when struck by defendant's delivery truck, instruction on duty of pedestrians crossing street held correct statement of law.

Verdict for $2,062.15 to 36 year old woman in good health before accident, resulting in painful injuries, shattering of nerves, and probable permanent partial disability, held not excessive.

1. In an action for damages sustained by plaintiff when she was struck, knocked down, and dragged some distance by a delivery truck driven by defendant's employee, the record examined, and held, that the evidence did not show that plaintiff was guilty of contributory negligence as a matter of law.

2. The jury's special findings considered, and held, that they were not inconsistent with the general verdict nor did they require that judgment for defendant be entered thereon.

3. An appeal is concerned with and limited to the record made of the trial under review; and the appellate court cannot take into consideration any matters developed in a prior trial or in a companion lawsuit which have not been properly brought into the record under review.

4. Error assigned on instructions given and refused considered and not sustained.

5. The extent of plaintiff's injuries and the verdict rendered in her behalf therefor considered, and no manifest evidence of passion or prejudice on the part of the jury discerned therein; nor was the verdict so large as to constrain this court to direct a remittitur with the alternative of a new trial.

Appeal from District Court, Reno County; John G. Somers, Judge.

Action by Margaret Shrout against Earl Bird. Judgment in favor of the plaintiff, and the defendant appeals.

Carr W Taylor and Harry H. Dunn, both of Hutchinson, for appellant.

J. N Tincher and Don Shaffer, both of Hutchinson, and George W Cox, of Wichita, for appellee.

DAWSON J.

This case was here before. Shrout v. Bird, 132 Kan. 617 296 P. 369. It was an action for damages for injuries sustained by plaintiff when she was struck, knocked down, and dragged some distance by defendant's delivery truck at a street intersection in Hutchinson.

Madison street runs north and south and is 44 feet wide; and First avenue, which is 72 feet wide, runs east and west intersecting it. Plaintiff resided on the north side of First avenue a short distance east of the intersection. According to the evidence for plaintiff, it appears that on March 5, 1929, she and a neighbor, Mrs. Skinner, went out for an evening walk some distance toward the southwest. As they returned they crossed Madison eastward and then started north across First avenue. As plaintiff and her companion were about to step into First avenue, they looked eastward and saw defendant's truck nearly a block away coming west on the north side of the street. The women had taken but a few steps into the street when the truck hit them. Plaintiff testified: "It knocked me under the truck and dragged me around the corner. *** I was not knocked insensible, I was stunned but I knew what was going on. When the car stopped I was lying on my right side. *** So I had to lie there until some one came to me, and a lady came and also the driver of the truck and pulled me from between the wheels toward the curb on that corner, the southwest corner, and they carried me over and put me on the parking by the curb or on the curb; and the driver bent over me and I asked him why in the world he didn't try to miss us, and he said, 'I didn't see you until I hit you."' On cross-examination she testified:

"Q. Anyhow, you didn't look to see what became of the car? A. I looked up and saw

this truck advancing on the north side of the street.

"Q. And that was about 300 feet away? A. Yes, sir.

"Q. And then you never looked again? *** A. No, I didn't. ***

"Q. Do you remember what part of the car, when you were knocked down, you caught hold of? A. Well, I though it might have been the axle I grabbed the first thing.

"Q. You grabbed hold of it? A. Yes, sir. ***

"I do not know how many feet the car dragged me in that position. I am not a good judge of distance but it dragged me around Catawampus over toward Marshall's house [west of the intersection]. I don't know how far it was."

Mrs. Skinner testified:

"We walked to the curb of the parking. We looked each way to see if there was any traffic and this Ford truck, Wardrobe Dry Cleaning truck, was coming from the east, at about the bridge. ***

"*** The car come like a rocket from Cow Creek bridge while we were taking two steps and hit me before I had time to think.

"The bridge is about three-quarters of a block down the street. This would be an estimate."

There was a good deal of this sort of evidence adduced in behalf of plaintiff. On the other hand, the evidence on defendant's behalf was that plaintiff and her companion were walking diagonally from the west side of Madison street towards the northeast corner of the intersection when the truck hit them; that the driver of the truck stayed on the north side of First avenue until he passed the center line of the intersection and that he was headed south on the west side of Madison before the accident occurred. The fair inference of that evidence, if believed, would be that defendant's truck driver was operating the delivery truck as he had a right to do and that the accident occurred because of negligence or contributory negligence of plaintiff.

The jury returned a verdict for plaintiff and answered special questions, some of which read:

"Q. No. 4. Before starting to cross First Avenue to the north, did the plaintiff look to the east and observe the defendant's car coming from the east? A. Yes.

"Q. No. 5. Was the defendant's truck traveling in a southwesterly direction when it struck the plaintiff? A. Yes.

"Q. No. 6. About how far did the defendant's truck go before it was possible to stop it after striking the plaintiff? A. About thirty (30) feet.

"Q. No. 7. Could the plaintiff have seen the defendant's car coming west on Madison Avenue, after she started across First Avenue, had she looked down said street? A. Yes.

"Q. No. 8. Did the plaintiff while proceeding in a northerly or northeasterly direction across First Avenue look in front and to the right to see whether defendant's automobile was approaching? A. No.

"Q. No. 9. Did the plaintiff do anything to avoid being struck by the defendant's automobile? A. No.

"Q. No. 10. Did the driver of defendant's car do everything in his power to stop the automobile and avoid striking the plaintiff when he first saw her? A. Yes.

"Q. No. 11. Do you find that plaintiff through her own negligence contributed to the injuries complained of? A. No. ***

"Q. No. 13. Was the plaintiff walking diagonally across said intersection in a northeasterly direction from the southwest corner of said intersection of Madison Street and First Avenue west at the time she was struck by defendant's automobile? A. No."

Defendant's motions to set aside the special findings, for judgment notwithstanding the general verdict, and for a new trial were overruled, and judgment was entered for plaintiff.

Defendant assigns and argues certain errors, the first of which relates to the overruling of his demurrer to plaintiff's evidence; his contention being that she was...