Stilwell v. Faith

• Decision Date: 07 December 1935
• Docket Number: 32436.
• Citation: 142 Kan. 730,52 P.2d 635
• Parties: STILWELL v. FAITH. [*]
• Court: Kansas Supreme Court

52 P.2d 635

142 Kan. 730

STILWELL v. FAITH. ^[*]

No. 32436.

Supreme Court of Kansas

December 7, 1935

Syllabus by the Court.

In action for injuries sustained in automobile collision overruling demurrer to plaintiff's evidence applied for on ground of absence of evidence to show that defendant was driving his automobile held not reversible error, where deficiency of evidence was supplied before cause was submitted to jury.

In action for injuries sustained in collision with passing automobile, evidence supported special findings in plaintiff's favor.

Where plaintiff alleged that her chest was bruised, her fifth rib fractured, and that false joint had formed at its junction with spine, overruling motion to make more definite and certain, and permitting amendment of petition by substituting third and fifth ribs as ones injured, were within trial court's discretion, and evidence pertaining to such injuries was competent.

Where plaintiff alleged that her chest was bruised, her ribs fractured, and that false joint had formed at junction of rib with spine, testimony as to defective union between collar bone and sternum held admissible, where surgeon stated that juncture of clavicle and sternum was part of chest wall.

In an action for damages arising from a collision of automobiles on a public highway, the record examined, and held:

1. The trial court's ruling on the demurrer to plaintiff's evidence, although erroneous when made, did not constitute reversible error, because the shortage of evidence to support plaintiff's cause of action was supplied before the cause was submitted to the jury.

2. The evidence was sufficient to support the special findings of the jury.

3. Other objections to the judgment in favor of plaintiff considered, and not sustained.

Appeal from District Court, Saline County; Dallas Grover, Judge.

Action by Lysle Stilwell against Roy M. Faith. From a judgment for plaintiff, defendant appeals.

C. W Burch, B. I. Litowich, La Rue Royce, L. E. Clevenger, and E S. Hampton, all of Salina, for appellant.

Lee E Weeks, of Kansas City, and Z. C. Millikin, of Salina, for appellee.

DAWSON Justice.

This is an appeal from a judgment for $2,000 as damages for injuries sustained by the plaintiff in a collision of automobiles on a public highway.

The collision occurred one forenoon in March, 1934, on United States highway 40 about halfway between Reno and Tonganoxie. The highway thereabout is paved with concrete, 18 feet wide, with a black line painted on the slab to indicate its center line. The course of the highway is towards the northeast and southwest, and lies adjacent to a railway right of way which parallels it.

The previous night had been rainy, and at the time of the accident drizzling rain and occasional snow flakes were falling; the pavement was wet and the shoulders of the highway were muddy.

Plaintiff was the passenger guest of Miss Daisy Brown, owner of a Chevrolet coupé proceeding northeastward at 25 or 30 miles per hour. Following the coupé were two highway patrol automobiles, a passenger omnibus, and the terraplane automobile owned by defendant. Whether the latter was being driven by defendant or by his brother was a controverted issue of fact in this lawsuit.

All these motor vehicles had been traveling faster than Miss Brown's coupé. The first patrol car with two officers passed to the left of the coupé and went ahead. Defendant's terraplane followed, and attempted to do the same, but collided with the coupé, causing it to veer sharply to the right, leave the highway, cross a ditch, break through a fence, and turn over on its side. Defendant's car stopped within two feet of the point of collision with its left front wheel resting on the left shoulder of the highway. The second patrol car with two officers stopped almost at the point where the coupé left the highway, and the passenger bus was not far behind. The door of the coupé was jammed so that its occupants were imprisoned until the four patrol men, the defendant, and the bus driver, came to their rescue and pried it open. Plaintiff sustained various injuries which were the basis of this lawsuit for damages.

The petition narrated the pertinent facts, alleged that the coupé in which plaintiff was riding was being operated with due care, stated the conditions of the road and the weather, alleged the incidents of the collision and defendant's negligence in various particulars, excessive speed, failing to drive his car past the coupé in a manner which would avoid striking it, failing to sound a horn or give any warning of his intention to pass the coupé, failing to keep a proper lookout for cars ahead of him, and particularly the coupé in which plaintiff was riding, and failing to slacken his speed and keep his car under proper control at the time he was attempting to pass the coupé.

Plaintiff also pleaded that as a result of the alleged negligence she suffered serious injuries which she described in detail. She prayed for $25,000 as damages.

Defendant's answer contained a general denial and alleged that his automobile was being operated with due care at the time of the collision; that the coupé in which plaintiff was riding had been negligently driven off the east side of the pavement and then suddenly and without warning it had been carelessly and negligently driven from the east side of the pavement towards the west or left side of the pavement directly in front of defendant's car; that when the coupé crossed towards the left side of the road the brakes had been immediately applied to defendant's car, but that the collision was unavoidable; and that the driver of the coupé and plaintiff herself were guilty of contributory negligence.

The evidence for plaintiff tended to show that the coupé was being driven on the right side of the highway with due care, and that without warning defendant's car struck the left rear fender of the coupé, causing it to swerve from the wet pavement, leave the highway, cross the fence, and turn back towards the west and fall over on its left side, imprisoning and injuring the plaintiff.

At the conclusion of the evidence for plaintiff, defendant demurred on the particular ground that it had not been shown that defendant himself was driving his car at the time of the collision. This point was overruled. The record recites:

"The Court: You don't claim he wasn't in the car?

"Counsel for defendant: I do not claim he wasn't in it. I claim he wasn't driving it.

"The Court: They may not be able to tell who was driving the car, but then the obligation is upon the defendant to show who was driving. The demurrer will be overruled."

The evidence for defendant tended to show that the two right wheels of the coupé did run off the east side of the slab almost immediately before the accident, and when the coupé was turned back on the slab it ran almost directly across the pavement to the left side of the highway; that there was not time for defendant's car to be stopped before striking the coupé; that it did strike the coupé on its left side just behind the left front fender; that defendant's car was stopped within two feet from the point of collision; and that defendant's brother, Oliver Faith, not the defendant, was driving defendant's car at the time.

Jury trial; verdict of $2,000; special findings, judgment for plaintiff; appeal.

Defendant's first objection to the general result was the trial court's ruling on the demurrer to the evidence, and particularly to the untenable theory announced by the court when it made that ruling. It is trite and settled law in this jurisdiction that liability for an automobile accident does not attach to the owner of the car from the mere fact of ownership nor from the fact that he may have been riding in it at the time of the accident. Halverson v. Blosser, 101 Kan. 683, 168 P. 863, L.R.A. 1917B, 498; Zeeb v. Bahnmaier, 103 Kan. 599, 176 P. 326, 2 A.L.R. 883, and note; Tice v. Crowder, 119 Kan. 494, 240 P. 964, 42 A.L.R. 893. See, also, notes in 64 A.L.R. 873-878; 80 A.L.R. 285 et seq. There are, indeed, some courts which hold that the fact of ownership establishes a prima facie liability for accidents caused by the motor vehicle. See 2 R.C.L. Perm. Supp. 665 et seq. It may be inferred, however, that this latter view has grown out of the fact that in some states this particular matter is governed by statute. Parker-Harris Co. v. Tate, 135 Tenn. 509, 188 S.W. 54, L.R.A. 1916F, 935, 936

When plaintiff rested, any evidence that defendant was driving his car was decidedly shadowy, probably quite insufficient to take the case to the jury. The fact that defendant owned the car which collided with the coupé was not disputed. In her case in chief, plaintiff's witness, Daisy A. Brown, testified that following the accident she talked with defendant and obtained his name. Defendant's evidence supplied scarcely any additional facts. It was shown that after the collision defendant got out of his car and ran over to the coupé which had the imprisoned women in it. One witness for defendant testified that the driver of defendant's car was Roy M. Faith, but on cross-examination he was shown some report he had made at the time of the accident, following which he said, "It must have been O. W. Faith," brother of the defendant. The defendant himself testified that his brother, O. W. Faith, was driving at the time of the collision, that he and the highway officers and the bus driver hastened to the overturned coupé to aid its imprisoned occupants, and that it took them five minutes to hammer the door so it would open; that he talked with the owner of the coupé, she asked...