Waugh v. Kansas City Public Service Co.

• Citation: 143 P.2d 788,157 Kan. 690
• Decision Date: 11 December 1943
• Docket Number: 36001.
• Parties: WAUGH v. KANSAS CITY PUBLIC SERVICE CO. et al.
• Court: Kansas Supreme Court

143 P.2d 788

157 Kan. 690

WAUGH v. KANSAS CITY PUBLIC SERVICE CO. et al.

No. 36001.

Supreme Court of Kansas

December 11, 1943

Rehearing Denied Jan. 27, 1944.

Syllabus by the Court.

In passing on demurrer to evidence, trial court and Supreme Court are concerned only with evidence and inferences therefrom supporting a cause of action, and do not consider evidence or inferences therefrom favorable to demurrants.

In action for injuries in collision between plaintiff's tractor-trailer and street car at street intersection at night, wherein street railroad and motorman filed counterclaims, evidence warranted finding that collision resulted from plaintiff's negligence in operation of his tractor-trailer.

An insurer issuing a liability policy to a contract or private motor carrier of property as required by statute may be joined as a party in action by injured third party. Gen.St.1935, 66-1,128.

Whether farmer who had a permit to operate as a contract and private motor carrier and who had transported his cattle for sale to a distant point, and was returning with corn for his own use when his truck collided with a street car, was operating within terms of his permit so as to authorize joining his liability insurer with the farmer in cross-petition filed by street railroad and motorman, arising out of a collision between the truck and a street car, was properly submitted to the jury. Gen. St.1935, 66-1,108(i), 66-1,109, 66-1,128.

The alleged misjoinder of causes of action or parties cannot be raised by demurrer to the evidence.

An appeal does not lie from a judgment where only matter involved is the costs adjudged against one of the parties to the action. Gen.St.1935, 60-3303.

In action for injuries in collision between plaintiff's tractor-trailer and a street car at street intersection at night, whether street car motorman was negligent in failing to give right of way to plaintiff so as to preclude motorman and street railroad from recovering on their counterclaims was for jury. Gen.St.Supp.1941, 8-501 et seq.

Appellants were not precluded from urging error in instruction which failed to include any statement as to duties of motor vehicle operator in approaching intersection crossed by street car merely because they did not offer any instruction to cover the subject where they specifically called trial court's attention to deficiency and that such instruction was not satisfactory to them. Gen.St.Supp.1941, 8-562(b).

A street railroad and street car motorman who, in counterclaims against plaintiff whose tractor-trailer collided with street car at street intersection, sought to recover for damages and injuries had the burden not only to show that plaintiff was negligent, but that such negligence contributed to and was proximate cause of their injuries. Gen.St.Supp.1941, 8-562.

A street railroad and street car motorman who filed counterclaims against plaintiff whose tractor-trailer collided with street car at street intersection, on ground that plaintiff failed to yield right of way and attempted to cross intersection after street car had started to cross it were entitled to instruction as to plaintiff's duties. Gen.St.Supp.1941, 8-562.

In action for injuries in collision between plaintiff's tractor-trailer and street car at street intersection at night, wherein street railroad and street car motorman counterclaimed, an instruction which placed too strict a burden upon counterclaimants and too light a duty upon plaintiff, and wholly ignored respective rights and duties imposed upon the parties by statute, was erroneous notwithstanding language of the statute was quoted in the instruction. Gen.St.Supp.1941, 8-562.

1. In an action for damages for injuries sustained in a collision between a truck and a streetcar at a street intersection the plaintiff and his insurance carrier demurred to the evidence adduced by defendants in support of a counterclaim set up by them in their cross-petitions. Under the rule for testing sufficiency of evidence on demurrer it is held, the record disclosed: (a) Testimony supporting the negligence as alleged in such cross-petitions, and (b) evidence from which the jury might properly conclude that at the moment of the collision the truck driver was operating pursuant to the terms of a permit authorizing him to operate as a contract and private motor carrier of property.

2. Where an insurance company has issued a policy of insurance covering the activities of a duly licensed contract and private motor carrier of property it may properly be joined as a party defendant in an action such as is described in the preceding syllabus.

3. The question of misjoinder of causes of action or of parties cannot be raised by a demurrer to the evidence.

4. No appeal lies from a judgment where the only matter involved is the costs adjudged against one of the parties to an action.

5. In the action described in syllabus 1, where the trial court instructed the jury regarding the duties and obligations of the appellants in the operation of a streetcar at an intersection, but failed and refused to include in such instruction any statement as to the rights and/or duties of such appellants under G.S.1941 Supp. 8-562, which provides that when a streetcar has started to cross an intersection no driver of a vehicle shall drive upon or across the car tracks within the intersection in front of the streetcar such instruction and the record examined, and held: (1) Appellants were not precluded from urging the giving of such instruction was error, merely because they did not offer any instruction to cover the subject in general, where they specifically called the trial court's attention to the deficiency alleged to exist therein and expressly notified the court that such instruction was not satisfactory to them; (2) since the pleadings alleged, and there was substantial evidence tending to show, the streetcar had started to cross the intersection prior to the time the truck attempted to cross it appellants were entitled to an instruction defining their rights and/or duties under G.S.1941 Supp. 8-562; (3) the instruction complained of was erroneous in that it placed too strict a burden upon appellants and too light a duty upon the truck driver and wholly ignored the respective rights and/or duties imposed upon such parties at the intersection in question by the provisions of the statute just referred to.

Appeal from District Court, Wyandotte County, Division No. 4; Russell C. Hardy, Judge.

Action by Virgil Waugh against the Kansas City Public Service Company and N. Laycock to recover for injuries in a collision between plaintiff's tractor-trailer and a street car owned by first-named defendant and operated by last-named defendant. The Western Casualty & Surety Company of Fort Scott, Kan., which had issued a liability policy to plaintiff, was brought in on application of the defendants and order of the trial court, and the defendants filed counterclaims against the plaintiff and the Casualty & Surety Company of Fort Scott, Kan. From a judgment, defendants appeal, and the plaintiff and Casualty & Surety Company cross-appeal.

Reversed, with directions.

Edward M. Boddington, of Kansas City (Fred Robertson and J. O. Emerson, both of Kansas City, and Charles L. Carr, of Kansas City, Mo., on the brief), for appellants.

James K. Cubbison, of Kansas City (Blake A. Williamson and Lee Vaughan, both of Kansas City, on the brief), for appellee.

PARKER Justice.

This was an action for damages for injuries sustained shortly after midnight on November 16, 1941, in a collision between a tractor-trailer, hereinafter for purposes of brevity referred to as a truck, and a streetcar, at the intersection of Seventh Street and Richmond Avenue, in Kansas City, Kansas.

The pertinent facts follow: Plaintiff Virgil Waugh resides near Edna, Kansas, where he operates a farm, raises some cattle, and also engages in business as a trucker. He owns two trucks and holds a state license to operate as a contract motor carrier of property for hire with the additional privilege of operating as a private motor carrier of property within certain limitations set forth in such license. A few days prior to the time of the collision he had sold some cattle at Edna, Kansas, under an agreement whereby he was to deliver them to the purchaser at Atlantic, Iowa. A day or so prior to the date agreed upon for delivery he loaded such cattle into his truck and transported them to Atlantic where they were delivered to the purchaser. Thereafter, he bought a load of corn, loaded it on his truck, and left Atlantic about 5 or 6 o'clock in the afternoon of November 15, 1941, proceeding southwardly until he reached the point where the collision occurred.

Defendant, The Kansas City Public Service Company, is a corporation which operates a street railway system in Kansas City, Missouri, and Kansas City, Kansas. Its streetcar tracks extend in an easterly and westerly direction on Richmond Avenue and cross the intersection referred to.

N. Laycock, another defendant, is a streetcar operator in the employ of the streetcar company and was the motorman in charge of the streetcar involved in the collision.

The defendant the Western Casualty & Surety Company of Fort Scott, Kansas, hereinafter referred to as the insurance company, is engaged in an insurance business which includes the issuance of liability insurance policies covering the activities of both contract and private motor carriers of property for hire. It had executed to the owner of the truck a policy of insurance required by G.S.1935, 66-1,128, to enable him to operate under his license and this policy was in full force and effect on the date of the accident. This defendant was brought into the action as...