Siegrist v. Wheeler, 38939

• Decision Date: 06 July 1953
• Docket Number: No. 38939,38939
• Citation: 259 P.2d 223,175 Kan. 11
• Parties: SIEGRIST v. WHEELER et al.
• Court: Kansas Supreme Court

Page 223

259 P.2d 223

175 Kan. 11

SIEGRIST v. WHEELER et al.

No. 38939.

Supreme Court of Kansas.

July 6, 1953.

Rehearing Denied July 29, 1953.

Syllabus by the Court.

1. In testing the sufficiency of evidence as against a demurrer, the court shall consider all of plaintiff's evidence as true, shall consider that favorable to plaintiff, together with all reasonable inferences to be drawn therefrom, and disregard that unfavorable to plaintiff, and shall not weigh any part that is contradictory, nor weigh any differences between her direct and cross examination, and if so considered, there is any evidence which sustains plaintiff's case, the demurrer should be overruled.

2. The question whether a plaintiff is guilty of contributory negligence must be submitted to a jury, if the facts of record are such that reasonable minds, in the exercise of fair and impartial judgment, might reach different conclusions thereon.

3. An operator of an automobile may assume that others using the streets will observe the law, and he is not guilty of contributory negligence in acting upon such assumption unless and until he has knowledge to the contrary.

Ralph H. Noah, of Beloit, argued the cause, and Don W. Noah, of Beloit, was with him on the briefs, for appellant.

Lawrence Weigand, of Wichita, argued the cause, and R. L. Hamilton, of Beloit, and Claude I. Depew, W. E. Stanley, William C. Hook, Lawrence E. Curfman, Byron Brainerd, Charles W. Harris, and Orval J. Kaufman, all of Wichita, were with him on the briefs, for appellees.

WERTZ, Justice.

This case involves a street intersection collision in the city of Glasco, and is an appeal from an order of the trial court sustaining a demurrer to plaintiff's evidence in an action to recover for personal injuries sustained in the collision.

Appellant will be hereinafter referred to as plaintiff and appellees as defendants. Plaintiff's evidence in support of allegations contained in her amended petition may be summarized as follows:

First street in the city of Glasco is 40 feet wide and runs east and west intersecting Fisher avenue, 40 feet, 6 inches wide, at right angles. The street at the time was congested. On the morning of May 6, 1950, plaintiff was driving east on First street at a speed of 15 miles per hour and when she approached a point 25 feet west of the intersection of Fisher avenue she slackened her speed to 13 miles per hour, looked to the north on Fisher avenue and saw defendants' truck proceeding south on Fisher avenue. She estimated the truck was two-thirds the way up the block, or three or four times further north of the intersection than she was at the time. She testified the truck appeared to be moving slowly--'It wasn't going any ungodly rate of speed.' She didn't know if her estimate of the truck's speed was a supposition or a judgment which she formed by watching the truck proceed. She took it that the truck was not going any faster than she was, and she was keeping within the speed limit. She thought the truck was being operated at a reasonable rate of speed when she looked, and thought she had plenty of time to go through the intersection and way down the street before defendants' truck reached the intersection She then looked to the right, or south, for oncoming traffic, then straight ahead and entered the intersection. When approximately halfway through the intersection she again looked to the north and saw the truck just a few seconds before it hit her, it was going just like a flash. On cross-examination, defendants' counsel asked plaintiff the following questions to which she answered:

'Q. Now, what I am trying to get at, what do you mean when you thought, did you base that thought on watching him proceed, seeing how fast he covered a certain distance, or did you do it on a supposition that he was going a certain way? A. Well, my goodness, I was almost to the intersection and he was almost to the north end of that block.

'Q. Will you tell the jury what your idea is of proceeding along as he should have been, what rate of speed? A. That was a congested street and he shouldn't be going too fast, I wouldn't think. Well, I don't know how many miles an hour, I couldn't tell that.'

The city marshal testified that defendant Wheeler told him he was driving the truck at the time of the accident. After the truck hit plaintiff's car it slid all four wheels to the southeast, making real black marks on the pavement for a distance of 29 feet. The bumper of the truck was on top of the running board of plaintiff's car and kept it from turning over. The skid marks began about the center of Fisher street, the impact occurring in the southwest quarter of the intersection. The cars came to rest 6 feet east of the west line of Fisher avenue.

Mr. Carlile testified that defendant Wheeler prepared and signed a report of the accident for him, reading as follows:

'Had just went on duty; had the truck serviced at westside filling station and was on my way to the stockyard to load; when I arrived at this intersection I looked East and then the car was about 3 feet in front of truck and the truck hit the car at the door, pushed it sideways down street 29 feet before I got stopped. Signed Max Wheeler, Glasco, Kansas 5-6-50 Driver.'

In view of the question involved, it is not necessary to relate further evidence, except that plaintiff suffered serious injuries as a result of the collision. At the time of the accident, the ordinance of the city provided that no person should drive a vehicle on the street at a speed greater than reasonable and prudent under the conditions then existing, and where no special hazard exists, 20 miles per hour should be lawful in the congested district, and 25 miles per hour in the residential district, and that a speed in excess of such limits should be prima facie evidence that the speed was not reasonable.

G.S.1949, 8-532, contains provisions similar to the mentioned ordinance.

Section 8-550 provides that the driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway. When two vehicles enter an intersection from different highways at the same time the driver of the vehicle on the left shall yield the right of way to the vehicle on the right.

At the conclusion of plaintiff's evidence, the lower court sustained defendants' demurrer on the ground that plaintiff's evidence clearly showed her to be guilty of contributory negligence as a matter of law so as to bar recovery, and it is from that ruling this appeal is taken.

The question for our determination is whether plaintiff's evidence showed her to be guilty of contributory negligence as a matter of law so as to justify the action of the trial court in taking the case from the jury.

With respect to the ruling on the demurrer, defendants recognize the well-known rule that in testing the sufficiency of evidence as against a demurrer, the court shall consider all the plaintiff's evidence as true, shall consider that favorable to plaintiff, together with all reasonable inferences to be drawn therefrom and disregard that unfavorable to plaintiff, and shall not weigh any part that is contradictory, nor weigh any differences between her direct and cross examination, and, if so considered, there is any evidence which sustains the plaintiff's case, the demurrer should be overruled. Hill v. Southern Kansas Stage Lines Co., 143 Kan. 44, 53 P.2d 923; McCracken v. Stewart, 170 Kan. 129, 223 P.2d 963; Fry v. Cadle, 171 Kan. 14, 229 P.2d 724; Messinger v. Fulton, 173 Kan. 851, 252 P.2d 904; Briggs v. Burk, 174 Kan. 440, 257 P.2d 164; Samms v. Regier, 167 Kan. 556, 207 P.2d 414; Blankenship v. Fraker, 173 Kan. 438, 249 P.2d 683.

Defendants contend that plaintiff's action at the intersection fell below the standard which might be expected of an average prudent person. In determining whether a plaintiff is guilty of contributory negligence when tested by a demurrer, the question must be submitted to the jury if the facts are such that reasonable minds might reach different conclusions thereon. McCracken v. Stewart; Fry v. Cadle, both supra; and cases therein cited. Guided by the foregoing well-established rules of law, upon a fair survey of the record narrated above, we think the trial court was in error in sustaining the demurrer to plaintiff's evidence.

From the testimony it is clear that plaintiff entered the intersection to the right of defendants' truck. When 25 feet from the intersection, driving at a speed of from 13 to 15 miles per hour, she noticed the defendants' truck was almost to the north end of the block. This evidence warranted a conclusion that plaintiff was in the intersection while defendant's truck was still some distance away. Plaintiff having entered the intersection first had the right to assume that she could continue across the street and that defendants' truck driver would not exceed the speed at which she had reason to anticipate it would approach and cross the...