Sponable v. Thomas

• Decision Date: 09 June 1934
• Docket Number: 31518.
• Citation: 33 P.2d 721,139 Kan. 710
• Parties: SPONABLE v. THOMAS et al. [*]
• Court: Kansas Supreme Court

33 P.2d 721

139 Kan. 710

SPONABLE v. THOMAS et al. ^[*]

No. 31518.

Supreme Court of Kansas

June 9, 1934

Syllabus by the Court.

Injured person is entitled to recover for consequences which are natural and probable result of injuries without specially alleging them as grounds of recovery.

In action for injuries sustained in automobile collision evidence relating to danger of infection from puncture of malar bone, whether malocclusion affected digestion, and relating to plaintiff's humiliation because of facial disfigurement, held not objectionable as not being within issues raised by allegations of petition.

Petition alleged, in part, that glass in automobile windshield was broken and knocked into plaintiff's face; that his right cheek was cut; that glass was driven into maxillary bone causing opening in bone to orbital cavity; that his facial nerves were cut and right outer corner of mouth damaged so that it caused his mouth to droop; that his jaw was fractured and his teeth were battered and broken so that malocclusion resulted; that his face had been disfigured and his speech affected; and that he had various cuts and bruises on his body.

In action against both owner and driver of truck involved in collision with automobile, wherein driver's statements relating to lights on truck were admissible as against driver, alleged error based on failure to give instruction limiting consideration of statements, objected to by owner to driver only, although error, held not available, in absence of request for such instruction.

Defendant having brought question of insurance into automobile accident case by attributing to plaintiff a statement that plaintiff carried insurance, held not in position to object to testimony showing entire conversation in which insurance was discussed, including defendant's insurance.

In determining whether plaintiff was contributorily negligent, as matter of law, all testimony favorable to plaintiff must be accepted as true, and, if facts are such that reasonable minds would reach different conclusions therefrom, question must be submitted to jury.

In action for injuries sustained when automobile collided with rear of truck stopped on highway at night while rain, sleet, and snow were falling, contributory negligence of driver of automobile based on speed of automobile greater than speed which would enable him to stop within range of headlights held question for jury.

In action arising out of collision between plaintiff's automobile and defendant's truck stopped on highway at night, instruction that presence of truck of contract carrier on highway without lights required by law constituted prima facie evidence of negligence held not erroneous (Laws 1931, c. 244, § 2; Laws 1931, c. 236, §§ 5, 9, 21).

Instruction that stopping or parking truck on paved portion of highway so as to obstruct line of traffic constituted prima facie evidence of negligence held not erroneous as permitting recovery against owner of truck without regard to other elements of negligence relied on, in view of other instructions on subject of negligence.

$5,800 to man for personal injuries, including cut in face, fractured jaw, and broken teeth, causing pain and suffering, and resulting in malocclusion and disfigurement of face, held not excessive.

1. A party is entitled to recover for all consequences which are the natural and probable result of injuries negligently inflicted upon him by another; that is, for those consequences which the common experience of men justify us in believing will result from an injury, the extent and character of which are known, without specially alleging them as grounds of recovery.

2. Following Sweet v. Savings Bank, 73 Kan. 47, 84 P. 542, it is held that, where two persons are defendants in the same action, and plaintiff offers evidence competent as to one and incompetent as to another, and the latter offers an objection which is overruled and the evidence admitted, and the court omits to limit by proper instruction the application of such evidence to the defendant against whom it properly applies, no error can be predicated on the failure so to instruct when the objecting party does not request such an instruction.

3. Claim of error in the admission of testimony with respect to defendant having liability insurance examined, and held, that defendant, having brought the question of insurance into the case by attributing to plaintiff a statement that plaintiff carried insurance, cannot object that the entire conversation in which insurance was discussed be shown.

4. In determining whether as a matter of law a plaintiff is guilty of contributory negligence which precludes his recovery for injuries sustained, all of the testimony favorable to the plaintiff must be accepted as true, and, if the facts are such that reasonable minds reach different conclusions thereon, the question must be submitted to the jury and cannot be determined by the court as a matter of law.

5. Claims of error predicated on the admission of testimony, on the giving of instructions, on the refusal to give requested instructions, and as to whether or not the verdict is excessive, examined, and held to be without merit.

Appeal from District Court, Miami County; Garfield A. Roberds, Judge.

Action by John W. Sponable against H. R. Thomas and another. From a judgment in favor of the plaintiff, the defendants appeal.

See, also, 33 P.2d 729.

Roy S. Lowe, of Paola, and O. C. Mosman, Clay C. Rogers, Paul A. Buzard, and Don E. Black, all of Kansas City, Mo., for appellants.

Frank Merrill, of Paola, and W. L. Cunningham, D. Arthur Walker, Fred G. Leach, and William E. Cunningham, all of Arkansas City, for appellee.

THIELE Justice.

The above action was for damages for injuries sustained in an automobile accident. Plaintiff's wife was injured in the same accident, and an appeal from the judgment rendered in her case is also here for consideration. 33 P.2d 729. The facts applicable to both cases will be here stated.

The plaintiff and his wife reside at Paola, where the husband is a banker. On the night of February 3, 1932, about 7:30 p. m. they left Paola to go to Kansas City. It has been misting, raining, sleeting, and at times snowing, and they drove slowly in a model A Ford coupé equipped with standard lights and brakes which were in good condition. Chains were on the rear wheels. The husband drove the car, and was using a mixture of alcohol and glycerine to soften the snow and ice which accumulated on the windshield. The car had an automatic windshield wiper on the driver's side. Between 10 and 10:30 p. m. they approached Overland Park from the south on highway 73E. Overland Park is about 31 or 32 miles from Paola. At that time it was snowing and sleeting; the windshield wiper kept that space of the windshield clean, but occasionally it would get coated and the husband would stop and clean it. About one mile south of Overland Park he stopped and cleaned all of the windshield. Highway 73E runs along the east side of Overland Park. Highway 58 runs east and west through that place and connects with highway 73E. Just before highway 58 reaches highway 73E, it divides so that a portion goes straight east to 73E and a curve turns to the north and meets 73E about 200 feet north of the rectangular intersection. At a point east of highway 73E almost directly east of where the curve on highway 58 enters 73E stands Long's tourist camp and filling station. The paving on 73E is of brick, the edges of which are bordered by concrete headers. There is a concrete curb about 6 1/2 feet east of the east header and the space between is filled with broken rock. There are driveways leading from highway 73E into Long's station so that a car may leave the pavement, drive into the station, and proceed ahead and again enter the highway. As the plaintiffs came north, they observed a building to the west south of highway 58 and an automobile coming toward them on that highway. At the time plaintiff was driving about 15 miles per hour, as found by the jury in answer to a special question propounded in the wife's case. In the husband's case no special questions were submitted. The testimony warranted a finding that his speed was from 10 to 15 miles per hour. As plaintiff and his wife approached the northern intersection, the husband noticed an obstruction 10 to 12 feet ahead; he applied the brakes and swerved to the left, but did not avoid it. It was a truck, the rear of which stood about 48 inches above the ground. The front of the Ford went under the truck sufficiently that the lower part of the truck struck along the hood of the car, and the impact drove the front of the Ford back, breaking the windshield and front of the car and pinning the wife in the seat. The husband immediately got out and, with the assistance of defendant Warnicke (also spelled Warnecke or Warecke or Warneke), removed the wife, who was unconscious. In a few minutes the wife was taken into a neighboring dwelling, Warnicke and the husband returned to the Ford and got some luggage and then returned to the dwelling, where shortly thereafter, in answer to an inquiry, Warnicke stated that he had stopped to fix his lights.

While contradicted by the testimony of Warnicke in certain particulars, it was shown that the truck was stopped in highway 73E so that the rear wheels were on the pavement and the rear end projected to the south and west so that the extreme corner of it was about 6 inches west of the middle of the highway, and that there were no rear lights of any kind showing, and that no flares had been placed to warn of the unlighted truck. The driver of the car approaching from the west heard the crash and drove on highway 58 to the north of the truck and...