Wright v. National Mut. Cas. Co. of Tulsa

• Decision Date: 03 October 1942
• Docket Number: 35525.
• Citation: 155 Kan. 728,129 P.2d 271
• Parties: WRIGHT v. NATIONAL MUT. CASUALTY CO. OF TULSA et al.
• Court: Kansas Supreme Court

129 P.2d 271

155 Kan. 728

WRIGHT v. NATIONAL MUT. CASUALTY CO. OF TULSA et al.

No. 35525.

Supreme Court of Kansas

October 3, 1942

Rehearing Denied Nov. 16, 1942.

Syllabus by the Court.

Where the act found by the jury as negligence does not cause the injury complained of, there can be no recovery.

Where absence of lights or signals does not prevent a driver from seeing a vehicle in time to avoid it, such absence cannot be the "proximate cause" of the collision.

Where motorist drives an automobile along a highway on a dark night at such speed that the automobile cannot be stopped or turned aside within the range of the lights, such person is "negligent" as a matter of law.

In action against truck owner for death of automobile passenger when automobile struck a parked truck at night, evidence established that automobile was traveling at least 50 miles per hour when 40 feet from truck, precluding recovery because of automobile driver's contributory negligence in driving at a speed rendering him unable to stop within the range of his lights.

In determining whether absence of rear top lights on rear of truck parked on highway at night caused death of passenger of automobile colliding with truck, the condition of the highway, atmospheric conditions, and visibility were to be considered.

Jury's finding that driver and deceased passenger of automobile striking parked truck at night could have first seen the truck at 100 feet was in irreconcilable conflict with finding that automobile driver could have observed objects at night with dimmers on at 200 feet, requiring reversal of judgment against truck owner for passenger's wrongful death.

Where important special findings made by jury are wholly inconsistent, judgment on the verdict cannot stand but will be reversed and the cause will be remanded for new trial.

1. Where special findings on material issues of fact made by a jury are wholly inconsistent, judgment on the verdict cannot stand. In such case the judgment will be reversed and the cause remanded for a new trial.

2. Where a person drives an automobile along a highway on a dark night at such speed that the car cannot be stopped or turned aside within the range of vision of the lights on his car such person is guilty of negligence as a matter of law.

3. Where the act found as negligence did not cause the injury complained of, there can be no recovery.

4. Where the absence of lights or signals does not prevent a driver from seeing a vehicle in time to avoid it, the absence of such lights or signals cannot be said to be the proximate cause of the collision.

Appeal from District Court, Sedgwick County, Division No. 1; Ross McCormick, Judge.

Action by Mrs. Anna Wright against the National Mutual Casualty Company of Tulsa, and another for death of plaintiff's son in an automobile accident. From a judgment for plaintiff defendants appeal.

Reversed with directions to grant a new trial.

I. H Stearns, of Wichita (C. A. Matson and E. P. Villepigue, both of Wichita, on the brief), for appellants.

F. W Prosser, of Wichita, for appellee.

ALLEN Justice.

Anna Wright brought this action to recover damages for the wrongful death of her son Howard Wade Wright. Plaintiff's son was killed when the automobile in which he was riding struck the livestock truck of defendant Gordon. The insurance carrier of Gordon was joined as defendant. The appeal is from a judgment in favor of plaintiff.

The collision resulting in the death of young Wright occurred about two and one half miles east of the town of Mullinville. At Mullinville, U.S. Highway No. 154 coming from the northwest and U.S. Highway No. 54 coming from the southwest unite and run east as one road. East of Mullinville the highway is designated as U.S. Highway No. 54.

The accident occurred at about 7:45 in the evening of February 19, 1940. Plaintiff's son was riding in a Dodge car belonging to and being driven by Carl C. Maurer. Wright and Maurer were friends and lived in Freona, Texas. They had left Freona about noon of February 19, to drive to Wichita. Wright and Maurer had driven over Highway No. 54 from the southwest to Mullinville and were proceeding eastward from that town. Defendant Gordon approached Mullinville on Highway No. 154 from the northwest and had proceeded eastward evidently a little ahead of the Maurer car.

When the Gordon truck had gone about two and one half miles east of Mullinville it came to a place where a snowbank had been on the highway and where only one lane of traffic had been cut through. Gordon stopped his truck with the right wheels off the blacktop pavement to allow cars that were approaching from the opposite direction to pass. Before these cars reached the truck, the Maurer car came up from the rear and struck the left-hand rear corner of the truck with the top of the right side of the Maurer cat's windshield. Howard Wade Wright, riding in the right-hand side of the front seat as a passenger in the Maurer car was injured and died shortly thereafter.

The petition set forth the above facts and alleged that the truck driven by the defendant Gordon was a 1938 Ford truck with a stock or stake body constructed and built out of lumber; that the lumber and body were neutral in color and unpainted in any distinguishing manner; that the truck was negligently parked on the highway with the right wheels just off the edge of the slab and the major portion of the truck on the highway; that the rear of the truck was not properly marked by lights or marker lights or with lights as required by the statutes and the rules and regulations of the State Corporation Commission and that the death of Wright was caused by the negligence and carelessness of Gordon in the particulars named.

The petition alleged that plaintiff's son was twenty-eight years of age and was earning eighty-five dollars per month and that he contributed in a material way to plaintiff's support; that he had agreed to furnish plaintiff with a home and to take care of her, and that by reason of the negligent acts of defendant Gordon, plaintiff had lost her expected home and financial assistance.

Defendants in their answer alleged that Howard Wade Wright and Carl C. Maurer were guilty of contributory negligence in operating the automobile at a high and dangerous rate of speed, and in driving at such a rate of speed that they were unable to stop the car within the range of vision of the lights of their automobile. It was also alleged that Wright and Maurer were engaged in a joint venture and that the negligence of Maurer, the driver of the automobile, was under the law imputed to Wright.

The issues were submitted to a jury. The jury gave its verdict in favor of the plaintiff in the sum of $3,000, and returned answers to special questions.

In answer to special questions the jury found that Howard Wade Wright had planned to furnish plaintiff with a home and that after his father's death had contributed $780 to plaintiff; that defendant Gordon had "no identification lights at top of truck at rear", and that such failure constituted negligence which caused the death of Wright; that the truck was of such color that it had a tendency to blend with the highway and could not be distinguished until an approaching truck was almost to it; that at the time Maurer first saw the truck he was driving between 45 and 50 miles per hour; that at or immediately prior to the collision Wright exclaimed "Look out"; that "failing to see the truck in time" prevented Maurer from stopping his car before reaching the truck; that Maurer was 40 or 50 feet from the truck when he first observed it, and that he applied his brakes at that time; that the lights on the rear of the truck...