Tilden v. Ash

• Decision Date: 08 May 1937
• Docket Number: 33369.
• Citation: 145 Kan. 909,67 P.2d 614
• Parties: TILDEN v. ASH et al.
• Court: Kansas Supreme Court

67 P.2d 614

145 Kan. 909

TILDEN v. ASH et al.

No. 33369.

Supreme Court of Kansas

May 8, 1937

Syllabus by the Court.

On demurrer to evidence, court considers only evidence and reasonable inferences therefrom which are favorable to party adducing evidence, and does not consider evidence favorable to party demurring thereto.

Substantially concurrent negligent acts of two or more persons render all liable as joint tort-feasors where act or acts of each contribute to injuries, each tort-feasor being liable for entire damage regardless of degree of culpability of each.

In action for injuries received by motorist's daughter when automobile which had been driven off highway was struck by approaching loaded truck which left highway when an unloaded truck turned into highway in front of loaded truck at highway intersection after passing slow sign, question of liability of owners of unloaded truck held for jury.

In action for injuries received by motorist's daughter when automobile which had been driven off highway was struck by approaching loaded truck which left highway when unloaded truck turned onto highway in front of loaded truck at intersection, evidence held to justify finding that unloaded truck partly entered intersection in line of travel of loaded truck and proceeded in opposite direction thereon, and that driver of loaded truck swerved to left to avoid collision with unloaded truck.

In action for injuries received by motorist's daughter when automobile which had been driven off road was struck by approaching loaded truck which left highway when an unloaded truck turned on highway in front of loaded truck at curving intersection, wherein owners of unloaded truck failed to plead emergency, refusal of instruction on emergency in favor of owners of unloaded truck held not error.

In action by motorist's daughter for injuries received by her when automobile which had been driven off highway was struck by loaded truck which had left highway when an unloaded truck turned in front of loaded truck at intersection, instruction on proximate cause held not error for failure to advise jury that act must constitute substantial factor in bringing about injurious result in order to make defendant liable, in view of other instructions on subject.

$10,000 as reduced from $12,500, the full amount demanded in the petition, held not excessive for broken clavicle, one broken tooth and loosening of three teeth requiring extensive dental work and wearing of brace on teeth, and severe laceration of face leaving permanent scars and injury to left wrist of eleven year old girl who had shown unusual ability as pianist before accident.

Mere fact that jury returns a verdict for full amount demanded dues not render the verdict excessive.

1. When ruling on a demurrer to evidence, the court considers only evidence and reasonable inferences therefrom which are favorable to the party adducing the evidence, and it does not consider evidence favorable to the party demurring thereto.

2. Substantially concurrent negligent acts of two or more persons render all liable as joint tort-feasors where the act or acts of each contribute to the injury. In such circumstances the degree of culpability of each is immaterial and each is liable for the entire damage.

3. The record, in an action for damages resulting from a collision of motor vehicles, examined, and held, the trial court did not err in the following rulings, to wit: (1) Overruling defendants' demurrer to plaintiff's evidence; (2) overruling defendants' motion for a directed verdict; (3) refusing to give a requested instruction on the subject of emergency; (4) giving a certain instruction on proximate cause; (5) overruling defendants' motion to strike out certain special findings; (6) overruling defendants' motion for judgment non obstante veredicto; (7) overruling defendants' motion for a new trial on the ground the verdict was excessive.

Appeal from District Court, Wyandotte County, Division No. 1; Edward L. Fischer, Judge.

Action by June Tilden, a minor, by and through G. F. Tilden, her father and next friend, against C. W. Ash and another and Albert La Croix and another. Judgment for plaintiff, and defendants Albert La Croix and another appeal.

E. H McVey, C. A. Randolph, S. L. Smithson, and Stanley Garrity all of Kansas City, Mo., and T. F. Railsback, of Kansas City for appellants.

Edward F. Arn, of Topeka, and Wm. H. McHale, of Kansas City, for appellee.

WEDELL Justice.

This was an action for damages to a minor, resulting from a collision of motor vehicles. The action was brought by the minor daughter through her father and next friend. Plaintiff recovered judgment against five defendants, but only two of them, Albert La Croix and E. Round, appeal.

The accident occurred at a multiple intersection of highways located about one-fourth mile north of the village of Williamstown, but not in the intersection proper and entirely off of the highway. A description of the roads, together with the illustrative map hereto attached, will help visualize the scene of the accident:

RPT.CC.1937116602.00010

(Image Omitted)

The accident occurred on May 11, 1935. State highway No. 10 between Topeka and Kansas City passed north of Williamstown. It is now U.S. No. 24. U.S. Highway No. 73-W came from the north and curved to the east before reaching No. 10, and continued eastwardly on the same slab as No. 10. U.S. No. 73-W is now U.S. Highway No. 59. There is a short state highway known as No. 76, which runs from the village of Williamstown north to and intersects State Highway No. 10. It forms a right-angled intersection with No. 10. There are two curves from Highway No. 76 which begin south of No. 10. One curve turns to the east, the other to the west, and both terminate in Highway No. 10. On the other hand, No. 73-W, now No. 59, comes down from the north and two curves of much longer radii branch off, one going to the southeast and the other to the southwest. State Highway No. 10 which was also No. 73-W, east of the junction, is normally an 18-foot slab. When it reaches a point several hundred feet from the right-angled intersection, it widens out to nineteen feet, four inches, then to nineteen feet, six inches. The easterly curve on No. 73-W, now No. 59, is twenty-two feet, two inches wide. It will be observed these roads result in the formation of four triangular segments of ground. The easterly point of the northeasterly triangular sector was denominated the "plow share point," during the trial and by the jury in its special verdict.

June Tilden, the minor, eleven years of age, was accompanying her father and mother from Topeka to Kansas City. They were traveling east on Highway No. 10, in a Studebaker car. A truck owned by the defendants Ash, described in the record as a yellow truck, was traveling west on the same highway. This truck was seven feet and seven inches wide. It had an inclosed top. When empty it weighed 5,500 pounds. It was carrying a load of about 5,000 pounds. Ash & Son Transportation Company was a partnership, consisting of defendants, C. W. and Everett Ash. They were engaged in the trucking business. Their Chevrolet truck was being driven by defendant Woodworth. He was accompanied by William Fleischer. Appellants, Albert La Croix and E. Round, lived at Hiawatha. They were traveling south in a red Ford truck on U.S. Highway No. 73-W, now U.S. No. 59, and were bound for Lawrence to inspect some fence posts. Their truck weighed a ton and a half. It was empty and had a flat bed. Appellants, together with the owners and driver of the Ash truck, were charged as joint tortfeasors, with being responsible for the collision between the Ash truck and plaintiff's car, and the resulting injury to June Tilden.

Appellants contend the trial court erred in overruling their demurrer to plaintiff's evidence. In passing on a demurrer to evidence, the court was, of course, required to give full credence to plaintiff's evidence, and to view that evidence in the light most favorable to plaintiff, and to allow all reasonable inferences in her favor. Hill v. Southern Kansas Stage Lines Co., 143 Kan. 44, 53 P.2d 923; Hayes v. Reid, 145 Kan. 51, 64 P.2d 19, and citations. In considering a demurrer to evidence, the court takes into consideration only those facts and reasonable inferences therefrom, which are favorable to the party adducing them and not facts or inferences favorable to the party demurring. Meneley v. Montgomery, 145 Kan. 109, 64 P.2d 550, and citations. With those rules in mind we shall briefly review the evidence offered in behalf of plaintiff.

G. F. Tilden, the father of the minor, testified in substance:

The accident occurred north of Williamstown about twenty miles east of Topeka; he was driving a Studebaker sedan in an easterly direction on Highway No. 10; the accident occurred about 2:30 p. m. of May 11, 1935; he and his wife were in the front seat and had the little girl between them; they had crossed the bridge and main intersection of State Highway No 76-W, and Highway No. 10; he estimated the distance from the bridge to the point of the accident at about three hundred or four hundred yards; he first observed the Ash truck when it was some distance east; he observed appellants' truck as it was traveling southeast on the curve, and when it was southeast of the slow sign located on that curve; the two trucks were traveling about the same speed, when he first observed them, approximately twenty-five, possibly thirty miles per hour; it seemed the Ash truck speeded up as it approached his car; the Ash truck was on the north side of No. 10; he had reduced his speed from about forty miles per hour to around thirty or thirty-five right after he left the bridge; his...