Simpson v. Schiff

• Decision Date: 09 April 1921
• Docket Number: 23,107
• Citation: 197 P. 857,109 Kan. 9
• Parties: P. G. SIMPSON, Appellee, v. SAM SCHIFF, Appellant
• Court: Kansas Supreme Court

197 P. 857

109 Kan. 9

P. G. SIMPSON, Appellee, v. SAM SCHIFF, Appellant

No. 23,107

Supreme Court of Kansas

April 9, 1921

Decided January, 1921.

Appeal from Wyandotte district court, division No. 3; WILLIAM H MCCAMISH, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Collision Between Motorcycle and Automobile--Evidence Sustains Judgment for Plaintiff. In an action to recover damages for injuries resulting from a collision with a motorcycle upon which plaintiff was riding as a passenger and a motor car driven by defendant it is held there was sufficient evidence to sustain a judgment in plaintiff's favor.

2. SAME--Request for Separation of Witnesses Denied--No Abuse of Discretion. Before any testimony was offered the defendant asked to have the rule enforced as to plaintiff's witnesses, but for the reason that defendant's witnesses had not appeared, the court refused to enforce the rule until they were present. Held, there was no abuse of discretion in the ruling nor in the refusal of the court to continue the case until defendant's witnesses could be present.

3. SAME--Evidence of Physician--Improper Cross-examination. A physician, called merely for the purpose of identifying X-ray plates made by him showing a fracture of both bones of one of plaintiff's legs, testified that he did not know whether the fracture had been reduced before the plates were made, and that he could not say whether or not it was a compound fracture. Held, that an objection to a question on cross-examination calling for his opinion whether or not a compound fracture could be reduced the same as any other kind was properly sustained.

4. SAME--Remarks and Rulings of Trial Court Not Prejudicial. Remarks made by the court in the trial of a case and other rulings in respect to evidence considered and held not to be prejudicial.

A. J. Herrod, H. S. Roberts, both of Kansas City, and H. G. Pope, of Kansas City, Mo., for the appellant.

Arthur J. Stanley, Guy E. Stanley, both of Kansas City, William G. Lynch, John M. Kennedy, and Horace Guffin, all of Kansas City, Mo., for the appellee.

OPINION

PORTER, J.:

This is an appeal from a judgment in plaintiff's favor for damages for injuries resulting from a collision between a motorcycle on which plaintiff was riding and a motor car driven by the defendant.

The plaintiff's evidence showed the following facts in substance: The accident occurred in Kansas City, Mo., on the afternoon of May 25, 1919. A fellow workman, one Friberger, invited plaintiff to ride home as a passenger on his motorcycle. Twenty-fifth street runs east and west and is crossed by Southwest Boulevard, which runs northeast and southwest. The motorcycle was being driven on the right of the center of Twenty-fifth street near the intersection of that street and Southwest Boulevard; the defendant was operating his automobile in a northeasterly direction on the Boulevard and driving to the left of the center, and when he reached the intersection of the two streets, failed to make a proper turn, and negligently drove his automobile with great force and violence against the motorcycle, overturning it and injuring the plaintiff.

Each party, as usual in such accidents, claims that the other was in fault, and each contends that the other violated ordinances of the city which require motor cars and vehicles to be driven on the right of the center of a street, and prohibit a higher rate of speed than ten miles an hour at a street intersection. There was a sharp conflict in the evidence, but the special finding to the effect that just before the accident occurred plaintiff was giving attention to the manner in which the motorcycle was being driven is sustained by his testimony that he knew they were on the right side of the center of the street and that the motorcycle was going slow, and further, by evidence that immediately before the accident the motorcycle was passed by another car. There was evidence to sustain the special finding that defendant did not do everything in his power to avoid the collision and that he was negligent in failing to make a proper turn at the intersection of the two streets. This disposes of the merits of the case.

The principal contention is that the trial court was prejudiced against defendant, abused its discretion by making improper remarks in the presence of the jury, and in many other respects prevented the defendant from having a fair trial. After the opening statements of counsel for the parties and before any testimony had been introduced the defendant asked to have the rule enforced as to witnesses, but for the reason that defendant's witnesses had not appeared, the...