Witte v. Hutchins

• Decision Date: 09 July 1932
• Docket Number: 30427.
• Citation: 12 P.2d 724,135 Kan. 776
• Parties: WITTE v. HUTCHINS.
• Court: Kansas Supreme Court

12 P.2d 724

135 Kan. 776

WITTE v. HUTCHINS.

No. 30427.

Supreme Court of Kansas

July 9, 1932

Syllabus by the Court.

Whether plaintiff, passenger in automobile which struck defendant's unlighted truck at night, was contributorily negligent, held question for jury.

Permitting physician, familiar with X-ray, to testify that picture showed bone in plaintiff's foot had been fractured, held not error, in view of plaintiff's testimony.

In personal injury action, testimony relating to defendant's financial ability, properly limited to claim for exemplary damages, held admissible under petition.

1. In an action for damages for personal injuries sustained in an automobile casualty, it is held, under the facts shown by the record, that the question of plaintiff's contributory negligence was for the jury.

2. In an action for damages for personal injuries received in an automobile casualty, when plaintiff had testified that among the injuries sustained was a fractured bone in the ankle, and that an X-ray picture had been taken of it, it was not improper to permit a physician, familiar with X-ray pictures to testify that the picture showed the bone had been fractured at some time.

3. In an action for damages for personal injuries in an automobile casualty, where the petition alleges, among other things recklessness and wantonness upon the part of the defendant resulting in the injury, it is not improper to offer evidence of defendant's financial ability, where the evidence is properly limited to the claim of exemplary damages because of defendant's wantonness.

Appeal from District Court, Rice County; Ray H. Beals, Judge.

Action by Ruth Witte against Hershel Hutchins. Judgment for the plaintiff, and the defendant appeals.

Bronce Jackson, of Lyons, and Frank U. Russell, of Hutchinson, for appellant.

L. E Quinlan, of Lyons, for appellee.

HARVEY J.

Plaintiff recovered a judgment for damages for personal injuries sustained in an automobile casualty, and defendant has appealed.

The facts are substantially as follows: On the evening of September 26, 1930, plaintiff with her ten months old babe, was riding in an Essex coupé with B. A. Kersting, her husband's business associate, who owned and was driving the automobile, going from Lyons to her home at Hutchinson. They were traveling on a paved state highway. It was after dark and between 7:30 and 8 o'clock in the evening. When nearly four miles south of Lyons, they met an automobile coming from the south. As they got almost even with that car, plaintiff saw, directly ahead of them, what first looked like a shadow in the road, but which proved to be defendant's unlighted Ford truck, and called "Look out" to Kersting. He saw the object about the same time, applied his brakes, and turned his car to the left. The approaching automobile interfered with his turning very far, and, before he could stop, his automobile collided with the truck. The right front portion of his automobile collided with the left rear portion of the truck. Plaintiff was injured. She was taken to Lyons and given emergency treatment, and later went to Hutchinson, where she was treated. Her mouth was cut and her face badly scratched with broken glass, a hand and arm were bruised, her knees and shins were cut and bruised, one ankle was badly sprained, and perhaps a bone in it was fractured. It was necessary for her to employ help to look after the house and her baby. She also incurred obligations for medical attention. On December 8, which was as soon as she was able to do so, she went to the home of her parents in St. Louis, and while there had an X-ray made of her ankle.

It is not seriously contended that defendant was not negligent. He was driving his Ford truck without a light of any kind on it along one of the main traveled state highways after night. His conduct was...