Williams v. Withington

Decision Date08 February 1913
Docket Number17,973
Citation129 P. 1148,88 Kan. 809
PartiesMOLLIE J. WILLIAMS, Appellee, v. W. H. WITHINGTON, Appellant
CourtKansas Supreme Court

Decided January, 1913.

Appeal from Montgomery district court.

Judgment affirmed.



1. NEGLIGENCE -- Automobile -- Husband Driving Buggy -- Imputed Negligence. A woman who with a child in her lap goes riding about nine o'clock at night in a single seated buggy drawn by a gentle horse driven by her husband and who does not exercise or attempt to exercise any control over the vehicle or the driver, is not chargeable with the negligence of the husband in failing to see and avoid an automobile approaching from the side on which the husband is sitting.

2. SPECIAL QUESTIONS--Prolixity and Confusion to be Avoided. Special questions are not for the purpose of subjecting the jury to a process of technical and microscopic cross-examination, or of requiring them to distinguish between elements of injury beyond the ken of the anatomist and the metaphysician, but to show the chief ultimate facts.

Chester Stevens, of Independence, for the appellant.

Thos. E. Wagstaff, and Edward H. Chandler, both of Independence, for the appellee.



Main street in Cherryvale runs east and west and is intersected by Liberty street running north and south. At the intersection, and thence some distance east and west, Main street is paved with brick, the pavement being forty feet in width with a cement curb on each side six inches above the surface of the pavement. Liberty street is paved with brick for one block north, the pavement being thirty feet wide with a curb similar to the one on Main street. At about nine o'clock on the evening of June 26, 1910, the plaintiff was riding in a single-seated one-horse buggy driven by her husband, who sat on the right side. She held one child in her lap and another sat between her and her husband. As the buggy was coming west on the north side of Main street approaching the intersection the horse was driven diagonally across towards the south side as it approached Liberty street, and when within about fifteen feet therefrom the defendant, coming in his automobile down the east side of Liberty street, turned into Main and when the buggy was four or five feet from the south curb line of Main street the automobile struck the right hind wheel of the same, injuring the buggy, throwing the plaintiff forward into the wheel and injuring her. Plaintiff sued for damages, alleging, among other things, that there was an electric arc light about twenty feet above the center of the intersection of the two streets which cast sufficient rays on and around the vicinity to enable the defendant to see for 150 feet what objects, vehicles or persons there were upon the streets; that he recklessly and carelessly drove his machine south at a very high rate of speed, to wit, about twenty miles an hour, and along the east side of Liberty street at a reckless rate, to wit, about eighteen miles an hour, crossing the northwest corner of the intersection and then in a southeast direction crossing Main street, having his face turned towards the opposite side of the street and away from the direction in which he was running; that had he looked ahead he could have seen the buggy; that he gave no warning or signal of his approach at any time, but while crossing Main street in a southeast direction was engaged in conversation with two ladies in the back seat of his car. The jury returned a verdict for $ 600. A demurrer to the evidence, a motion for judgment on the special findings, and a motion for new trial were overruled. The defendant appeals and plaintiff files a cross-appeal alleging error in the reduction of the verdict.

The jury found, among other things, that there was room to have driven the horse along the north side of Main street where the accident occurred, the condition of the street being such as to afford an easy and safe passageway for the horse and buggy; that the horse was driven across the center and over to the south side of Main street just prior to the collision, to which the plaintiff made no objection; that the automobile crossed the center of the intersection toward the south side of Main, coming down Liberty street at from ten to twelve miles an hour, which rate was not decreased when it crossed the intersection, or when the collision occurred; that there were four lamps on the front of the automobile lighted at the time and one on the rear; that plaintiff, had she looked, could not have seen the light before it reached the intersection and prior to the accident, and that she did not see it and could not have seen it until on the south side of Main street; that when she could have first seen the light the horse and buggy were thirty or forty feet southeast of the intersection; that plaintiff could not have seen the automobile when it approached and crossed the intersection just prior to the collision; that the automobile was in the usual route of travel generally pursued in passing east on Main street and that the defendant did not see the horse and buggy before the light from his machine fell upon it; that there was not room between the horse and the south curb of Main street for the defendant to safely drive his automobile; that he did not just before the accident turn to the left to avoid collision; that after the plaintiff and her husband saw the automobile just before the collision they continued to drive toward the south curb of the intersection, and were four or five feet from the curb and fifteen feet from the intersection when the collision occurred; that the plaintiff could not have seen the automobile before it reached the intersection had she been looking. They further found that she was in possession of all her faculties of sight and hearing and did nothing to avoid the collision after she saw or should have seen the automobile and just prior to the collision. The plaintiff's husband testified that the defendant said it was all his fault and he would pay the damages. Another witness testified that afterwards he had a talk with the defendant in which the latter said he guessed it was his fault and that he offered to pay what was right and would have sent for a doctor if they had wanted it.

There was no error in overruling the demurrer to the evidence.

Complaint is made of the rejection of certain evidence, but this does not appear to have been brought to the attention of the trial court on the motion for new trial, as required by section 307 of the civil code. Neither do we find any error in the refusal to render judgment on the special findings. It remains to be considered whether the motion for new trial was wrongfully denied. Complaint is made that the instructions were not sufficient on the question of contributory negligence, although none was offered by the defendant. We have examined those given and find that they were as strongly in the defendant's favor as h...

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    ...no evidence of future pain and suffering (special verdict form, item [B]. The verdict is reduced by $100,000. See Williams v. Withington, 88 Kan. 809, 816, 129 Pac. 1148 (1913). We have held, in an action for unliquidated damages, that a plaintiff must either consent to a reduced verdict or......
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    ...passenger. Bush v. Union Pa. R. Co., 62 Kan. 709, 64 P. 624; Missouri, K. & T. R. Co. v. Bussey, 66 Kan. 735, 71 P. 261; Williams v. Withington, 88 Kan. 809, 129 P. 1148; Denton v. Missouri, K. & T. R. Co., 97 Kan. 498, 155 P. 812; Corley v. Atchison, T. & S. F. R. Co., 90 Kan. 70, 133 P. 5......
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    ... ... N.Y.S. 321; Louisville, etc., R. R. Co. v. McCarthy, ... 129 Ky. 821, 112 S.W. 925, 19 L. R. A. (N. S.) 230, 130 Am ... St. Rep. 494; Williams v. Withington, 88 Kan. 809, ... 129 P. 1148; note to Basler v. Sacramento Gas Co., ... etc., 158 Cal. 514, 111 P. 530, Ann. Cas. 1912A, 647; ... ...
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    ... ... (Civ. Code, § 307; Davidson v. Timmons, 88 Kan ... 553, 558, 129 P. 133; Walter, Adm'r, v. Calhoun, ... 88 Kan. 801, 129 P. 1176; Williams v. Withington, 88 ... Kan. 809, 812, 129 P. 1148; Cheek v. Railway Co., 89 ... Kan. 247, 257, 131 P. 617; O'Neal v. Bainbridge, ... 94 Kan. 518, ... ...
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