Steele v. Russell

• Decision Date: 25 January 1947
• Docket Number: 36586.
• Citation: Steele v. Russell, 176 P.2d 251, 162 Kan. 271 (Kan. 1947)
• Parties: STEELE v. RUSSELL.
• Court: Kansas Supreme Court

176 P.2d 251

162 Kan. 271

STEELE v. RUSSELL.

No. 36586.

Supreme Court of Kansas

January 25, 1947

Appeal fro District Court, Douglas County; Hugh Means, Judge.

Action by Margaret Steele against Ralph Russell to recover for injuries sustained when a truck in which plaintiff was riding collided with defendant's automobile.From a judgment the plaintiff appeals and the defendant cross-appeals.

Syllabus by the Court

1.In a trial by jury, where the court gives the proper instruction on a pertinent question of law and counsel for one of the parties thinks a better wording of the instruction could have been made, it is his duty to call the attention of the court to the matter and suggest the modification he thinks proper at the time of the trial and before the instruction is given to the jury.If he fails to do so he cannot be heard later to complain.

2.The rule that a clearly erroneous instruction on a question of law need not be objected to at the time it is given has no application where no instruction is given which is clearly erroneous.

3.The record in the trial of an action for personal injuries resulting from an automobile collision is examined and no error found therein.

Edw. T Riling and John J. Riling, both of Lawrence, for appellant.

Irwin Snattinger and David H. Fisher, both of Topeka (George K Melvin, of Lawrence, on the brief), for appellee.

HARVEY Chief Justice.

This was an action for damages for personal injuries sustained in a collision of two motor vehicles.A jury trial resulted in a verdict for defendant, upon which judgment was rendered, and the court overruled plaintiff's motion for a new trial.Plaintiff has appealed.

The location of the collision was the intersection of Seventh and Tennessee streets in Lawrence.Seventh street is an east and west street, paved 40 feet wide, and is also a part of Federal HighwayNo. 40andState HighwayNo. 10.It is intersected at right angles by Tennessee street, which is paved 30 feet wide.On the west side of Tennessee street there is a stop sign about 17 feet north of the pavement on Seventh street.There is a similar stop sign on the east side of Tennessee street about the same distance south of the pavement on Seventh street.Plaintiff lives near Clinton, a few miles southwest of Lawrence.On the day of the collision she rode into Lawrence with her neighbors, Mr. and Mrs. Kennedy, as their guest.Mr. Kennedy was driving a pickup truck.They rode in the seat of the cab of the truck Mr. Kennedy on the left driving, his wife in the center, and plaintiff on the right.Each of the women was holding on her lap her baby, less than a year old.He was driving east along Seventh street about the middle of the south half of the street at about 25 to 30 miles per hour.Defendant, with his wife riding with him, was driving his automobile south on the west side of the pavement on Tennessee street, crossing Seventh street.When he was almost across Seventh street his car was struck on the right side back of the door, near the right rear wheel, by the truck in which plaintiff was riding.She was seriously injured.

In her petition plaintiff alleged among other things that defendant's negligence consisted in his failure to stop at the stop sign before entering the intersection; in driving his car into and across the intersection at a reckless rate of speed, to wit, 20 miles per hour; in failing to look for traffic on the streets as he proceeded into and across the intersection, and failure to exercise due regard for the rights and safety of others; and in failing to yield the right of way to the truck in which plaintiff was riding, which had entered the intersection first.Several sections of the city ordinance pertaining to the duties of drivers of vehicles at such intersections were set out and it was alleged that defendant was negligent in failing to conform to the ordinance.The petition also alleged the extent of plaintiff's injuries, which need not be detailed.In his answer defendant denied the negligence charged against him in plaintiff's petition and alleged facts tending to show his due care and negligence on behalf of the driver of the truck in which plaintiff was riding, and also the negligence of plaintiff which contributed to her injuries.These allegations were put in issue by the reply.

We need not detail the evidence.On the issue controverted by the pleadings, as to whether defendant stopped at the stop sign before entering Seventh street, the plaintiff and Mr. and Mrs. Kennedy testified they did not know whether he had stopped or not; that the first they saw of defendant's car it was in the intersection.The plaintiff and Mr. Kennedy estimated that at the time they saw defendant's car starting into the intersection, or further along in the intersection, they were 40 to 50 feet west of the intersection.Some of the testimony of Mrs. Kennedy tends to locate them farther west, perhaps as far west as the alley west of Tennessee street, which the evidence shows was 125 feet; but she frankly stated she was not good at gauging distances, and further that she was giving more attention to her baby on her lap than she was to the exact location of the truck in which she was riding at the time defendant's car was first seen.

Mr. Joe Hemphill, a witness called by plaintiff, had driven his car from the south on Tennessee street towards Seventh street and had stopped at the stop sign south of Seventh street.He testified that he saw defendant's car on Tennessee street north of Seventh street and approaching it, and that the defendant had stopped at...