Weber v. Wilson

• Decision Date: 12 November 1960
• Docket Number: No. 41717,41717
• Citation: 187 Kan. 214,356 P.2d 659
• Parties: Joe WEBER, Minor, by W. H. Weber, his Father, Natural Guardian and Next Friend, Plaintiff, Appellant, v. Marion L. WILSON, Defendant, Appellee.
• Court: Kansas Supreme Court

Page 659

356 P.2d 659

187 Kan. 214

Joe WEBER, Minor, by W. H. Weber, his Father, Natural Guardian and Next Friend, Plaintiff, Appellant, v. Marion L. WILSON, Defendant, Appellee.

No. 41717.

Supreme Court of Kansas.

Nov. 12, 1960.

Syllabus by the Court

In an action by the natural guardian and next friend of a twelve-year-old boy to recover for personal injuries sustained in a collision at an intersection between the defendant's automobile and the boy's bicycle, the trial court overruled the defendant's demurrer to the plaintiff's evidence upon the ground that it failed to show actionable negligence on her part and it established contributory negligence on the part of the plaintiff as a matter of law. Thereafter, the defendant introduced evidence in support of her case. At the close of all the evidence, the trial court sustained the defendant's motion for a directed verdict in her favor. The record examined and it is held: The trial court erred in sustaining the motion for a directed verdict for the reason that the evidence produced by the plaintiff and testimony introduced by the defendant favorable to the plaintiff warranted submission of the case to the jury; and, it is further held: that evidence of the plaintiff's lack of care failed to establish contributory negligence as a matter of law, the question being one of fact for a jury to determine under proper instructions by the court.

Champ Graham, Emporia, argued the cause, and Wade A. Myers, Emporia, was with him on the briefs, for appellant.

Lacy C. Haynes, Emporia, argued the cause and was on the briefs, for appellee.

FATZER, Justice.

This was an action to recover for personal injuries resulting from an automobile collision with a bicycle ridden by a twelve-year-old boy.

At the trial the plaintiff presented evidence that he was struck and injured by the defendant's automobile when he rode his bicycle onto a black top county highway adjacent to the city of Emporia. At the close of the plaintiff's case the defendant interposed her demurrer upon the ground that the plaintiff's evidence failed to show any negligence on her part and that it established contributory negligence on the part of the plaintiff as a matter of law, which demurrer was overruled. The defendant did not stand on her demurrer but chose to introduce her evidence. At the conclusion of all the evidence the defendant moved the court to direct a verdict in her favor, which motion was sustained and the jury returned a verdict in favor of the defendant. The appeal is from the order sustaining the motion for a directed verdict and from the judgment rendered.

The appellant principally contends that the trial court erred when it sustained the defendant's motion for a directed verdict after it had overruled the defendant's demurrer to the plaintiff's evidence, and relies upon Stout v. Bowers, 97 Kan. 33, 154 P. 259; Flentie v. Townsend, 139 Kan. 82, 30 P.2d 132, and Rule v. Cheeseman, 181 Kan. 957, 317 P.2d 472. The argument is made that the ruling on the demurrer to the evidence was an adjudication that the plaintiff had made a prima facie case to go to the jury and that the subsequent ruling on the motion for a directed verdict was incompatible. We doubt the soundness of the plaintiff's contention as stated, since in the course of a trial the court is privileged to change its ruling, and indeed it ought always to do so if or when, upon more reflection or in the further progress of the lawsuit, it discovers that its earlier ruling ws incorrect (Cox v. Kellogg's Sales Co., 150 Kan. 516, 95 P.2d 531; Eckl v. Brennan, 150 Kan. 502, 95 P.2d 535), however, we think this appeal is disposed of by the following:

At common law, a ruling on the demurrer to the evidence ended the litigation. If the demurrer was sustained, judgment was entered for the defendant; if it was overruled, the defendant was required to stand on the demurrer and judgment was entered for the plaintiff. Under Kansas practice a demurrer to the evidence is a recognized procedural act (G.S.1949, 60-2909) and a motion for a directed verdict in favor of the defendant is essentially a demurrer to the plaintiff's evidence as now known in Kansas practice (Sullivan v. Phenix Ins. Co., 34 Kan. 170, Syl. p5, 8 P. 112; Cott v. Baker, 112 Kan. 115, 119, 210 P. 651). While the defendant may elect to stand on his demurrer to the plaintiff's evidence, he also has the right instead to introduce evidence in support of his case (Bishop v. Huffman, 177 Kan. 256, 278 P.2d 588; Ziegelasch v. Durr, 183 Kan. 233, 326 P.2d 295; Ogilvie v. Mangels, 183 Kan. 733, 332 P.2d 581, and cases cited therein; In re Estate of Rogers, 184 Kan. 24, 334 P.2d 830; McCarthy v. Tetyak, 184 Kan. 126, 334 P.2d 379; Anderson v. Thomas, 184 Kan. 240, 336 P.2d 821; Roberts v. Cooter, 184 Kan. 805, 339 P.2d 362; Vol. 8, Kansas Law Review, Survey of Kansas Law 1957-59, p. 212).

In the instant case, the defendant elected not to stand on her demurrer but introduce evidence in her own behalf, and, having done so, it was necessary for her to renew her demurrer or move for a directed verdict at the close of all the evidence, otherwise she waived her right to contend the plaintiff's evidence was insufficient to warrant its submission to the jury (In re Estate of Rogers, supra; McCarthy v. Tetyak, supra, 184 Kan. at page 132, 334 P.2d 379; Anderson v. Thomas, supra, 184 Kan. at pages 264, 265, 336 P.2d 821; Roberts v. Cooter, supra, 184 Kan. at page 813, 339 P.2d 362). Having moved for a directed verdict, the question whether the evidence was sufficient to warrant submitting the case to the jury is determined on the basis of all the evidence and not on the plaintiff's evidence alone. As in the case of a demurrer, in reviewing the propriety of an order sustaining a motion for a directed verdict, the appellate court is required to resolve all facts and inferences reasonably to be drawn from the testimony, in favor of the party against whom the ruling is sought (Ripper v. City of Canton, 166 Kan. 185, 199 P.2d 815; Mathis v. Public School District No. 103, 175 Kan. 453, 264 P.2d 1082; Bishop v. Huffman, supra; Rule v. Cheeseman, supra). Thus, in the instant case, the supreme court is required to consider all of the plaintiff's evidence as true, giving it the most favorable inference, disregarding that unfavorable, and not weigh any difference between the direct and cross-examination, and, since the defendant's evidence may contain some probative facts which would aid in establishing the case for the plaintiff, to consider the defendant's evidence for that purpose, disregarding any conflicting or unfavorable evidence offered by her, and determine whether there was any evidence establishing a prima facie case of negligence on the part of the defendant as well as freedom from contributory negligence on the part of the plaintiff (Eckl v. Brennan, 150 Kan. 502, 504, 95 P.2d 535; Bradley v. Allis Hotel Co., 153 Kan. 166, 173, 174, 176, 109 P.2d 165).

The question therefore is whether the testimony offered by the plaintiff and the favorable evidence produced by the defendant, if any, was sufficient to take the case to the jury. If the testimony fairly tended to prove the essential facts stated in the petition as to the defendant's negligence, although it may have been weak and inconclusive as compared with that produced by the defendant, the ruling on the motion to direct a verdict in favor of the defendant cannot be upheld. This point was conclusively decided in the Stout, Flentie, and Rule cases, supra, relied upon by the plaintiff. In Stout v. Bowers, supra, the defendants' demurrer to the plaintiff's evidence was overruled and at the close of all the evidence their motion for a directed verdict was sustained. In the opinion Mr. Chief Justice Johnston said:

'* * * If the demurrer to plaintiff's evidence could not be sustained, a verdict against her could not be directed, because of conflicting evidence subsequently produced in behalf of the defendants. Her case might have been strengthened by the testimony offered in their behalf, but on the motion to direct a verdict the prima facie case made by her testimony could not be weakened or destroyed by theirs * * *.' 97 Kan. loc. cit. 36, 154 P. loc. cit. 260.

Whether the trial court erred in sustaining the defendant's motion for a directed verdict depends upon two questions: whether there was any evidence of negligence in the manner the defendant operated her automobile prior to and at the time the plaintiff was injured, and whether contributory negligence may be imputed as a matter of law to a twelve-year-old boy riding a bicycle, under the circumstances presented by the record.

The collision in question occurred on May 21, 1958, between 5:00 and 6:00 o'clock p. m. at the intersection of Fifteenth Street and Prairie Avenue, a residential area. Prairie Avenue is a north-south black top county highway; Fifteenth Street east of Prairie Avenue is a black top surfaced road, and west of Prairie Avenue it is an eight or nine foot county highway, referred to by all the witnesses as a lane or driveway (driveway), used by residents west of Prairie Avenue as a driveway to reach their homes. Prior to the time the driveway became a part of the county system in 1952 it had been graveled by the township, but since that time it has remained unimproved. At the intersection in question, the vision of those traveling south on Prairie Avenue and east on the driveway is completely obstructed by a dense hedgerow ten or twelve feet high commencing three or four feet north of the driveway and growing five or six feet in from the west side of the right of way of Prairie Avenue, extending north approximately one block. Complementing that dangerous situation, there were no stop signs.

The plaintiff was a boy twelve years of age and had ridden a bicycle for two or three years. He had a weekly newspaper route and one of his customers lived on the north...