Ziegelasch v. Durr, 41004

• Decision Date: 07 June 1958
• Docket Number: No. 41004,41004
• Parties: Paul ZIEGELASCH, Appellee, v. Leon DURR, Appellant.
• Court: Kansas Supreme Court

Page 295

326 P.2d 295

183 Kan. 233

Paul ZIEGELASCH, Appellee, v. Leon DURR, Appellant.

No. 41004.

Supreme Court of Kansas.

June 7, 1958.

Syllabus by the Court

1. Where defendant's demurrer to plaintiff's evidence is overruled, and defendant elects to introduce evidence on his own behalf, the question of whether the case should be submitted to the jury at the close of all the evidence depends upon a consideration of all of the evidence produced by the parties. Under such circumstances, defendant must again raise the sufficiency of the evidence by a motion for a directed verdict or be deemed to have waived the sufficiency of plaintiff's evidence as raised by his former demurrer.

2. In order for a plaintiff to be entitled to rely upon the doctrine of last clear chance, the contributory negligence of plaintiff must have ceased and become inoperative prior to the happening of the accident, and must not constitute a concurring cause thereof.

3. An answer of 'no' to a question of whether plaintiff was guilty of negligence which contributed to and was a proximate cause of a collision constitutes a conclusion, and is controlled by other answers to specific questions of fact.

4. Where the facts of a case are established by the evidence and the findings of the jury, which have been approved by the trial court and that court has denied a motion for new trial, the supreme court may order final judgment as provided under G.S.1949, 60-3317.

John J. Riling and Eugene C. Riling, Lawrence, argued the cause and were on the briefs for appellant.

James N. Snyder, Leavenworth, argued the cause, and Milton P. Allen, Lawrence, was with him on the brief, for appellee.

JACKSON, Justice.

In the court below, appellee sued appellant for damages claiming that appellee had suffered property damage and personal injuries in an automobile collision caused by the negligence of appellant. In the trial of the action plaintiff received a verdict and judgment in his favor and defendant appeals. We shall continue to refer to the parties as they appeared in the district court.

The collision between the 1929 Ford driven by plaintiff and the 1953 Ford driven by defendant occurred during the daytime at the intersection of Kansas State Highway No. 32 and Reno Township Road, in Leavenworth county, a few miles east of Lawrence. The state highway is a through highway protected by stop signs, and runs generally east to west. The highway is blacktopped with pavement approximately twenty-four and one-half feet wide. Defendant was travelling the highway in an easterly direction. There were stop signs at the intersection in question commanding all traffic on the township road to stop before entering the highway, and the signs were placed on the township road some eighteen feet back from each side of the pavement of the highway.

The township road intersects the highway at approximately right angles running north and south. Plaintiff approached the highway from the north proceeding south.

The undisputed evidence showed that the north approach of the township road to the highway was clear for some ninety feet from the center of the highway up to a fence, and that from there on north the township road was obscured by sunflowers and weeds which were higher than an automobile.

At the close of the evidence, the trial court included in its instructions to the jury one instruction covering the doctrine of Last Clear Chance. The jury, as noted above, returned a general verdict for the plaintiff, and answered special questions, submitted to them by the court, as follows:

'Special Questions

'(1) Was the defendant guilty of negligence which was a proximate cause of the collision in question?

'Answer: Yes.

'(2) If your answer to question number 1 is yes, state what such negligence was.

'Answer: Defendant didn't take full advantage of last clear chance.

'(3) Was the plaintiff guilty of negligence which contributed to and was a proximate cause of the collision in question?

'Answer: No.

'(4) If your answer to question number (3) is yes, state what such negligence was.

'Answer: * * *

'(5) Did the plaintiff stop at the stop sign before entering on Kansas Highway 32?

'Answer: In our judgment--No.

'(6) If your answer to question number (5) is no, then state how far west of the intersection in question the defendant was when he first observed, or by the exercise of due care should have observed, that the plaintiff was not going to stop at the stop sign.

'Answer: 150 feet.

'(7) What rate of speed was the plaintiff's car travelling at the time the collision took place between the two automobiles?

'Answer: 40 miles.

'(8) What rate of speed was the defendant's car travelling when it reached a point approximately 100 feet west of the intersection in question?

'Answer: 55 miles.'

In his appeal to this court, defendant first assigns as error, the overruling of his demurrer to plaintiff's evidence. It would appear clear that defendant is not now in a position to urge any error of the trial court in that respect in this appeal under the particular facts of this case. Defendant demurred at the close of plaintiff's evidence, and the trial court overruled the demurrer. Defendant then proceeded to introduce his own evidence and rested, and allowed the case to be submitted to the jury without again raising the sufficiency of all of the evidence to show a prima facie case for the plaintiff by moving for a directed verdict at the close of all of the evidence. It would seem clear that from a consideration of our former cases, defendant had an obligation to interpose such a motion for directed verdict if he wished to preserve the question of the sufficiency of the evidence as a matter of law for review by this court. Furthermore, he had an obligation to direct the trial court's attention to this point at the end of all of the evidence.

This court has long held that if defendant demurs to plaintiff's evidence, and after the demurrer is overruled, proceeds to introduce his own evidence, he may cure any insufficiency of plaintiff's evidence; that at the close of all of the evidence, its sufficiency to go to the jury must be determined by a consideration of both the evidence introduced by plaintiff and evidence introduced by defendant. Some of the former cases so holding, without attempting to make a complete list, are: Henks v. Panning, 175 Kan. 424, at page 430, 264 P.2d 483, at page 488; Tuggle v. Cathers, 174 Kan. 122, at page 127, 254 P.2d 807, at page 812; Missouri Pac. R. Co. v. Bentley, 78 Kan. 221, Syl. 1, 93 P. 150; Woodmen Circle v. Stretton, 68 Kan. 403, Syl. 1, 75 P. 472.

In view of the holding of this court in the above cases, it would seem clear that if after having had his demurrer to plaintiff's evidence overruled and having proceeded to introduce his own evidence, defendant at the close of all of the evience still maintains that the case should not be submitted to the jury upon the facts established by the entire evidence, he must then direct the trial judge's attention to that contention by moving for a directed verdict in defendant's favor. The absence of such a motion must be construed as a waiver of such a contention.

The above well-reasoned rule seems to be well established in many of the other jurisdictions. In the leading case of Spencer v. State of New York, 187 N.Y. 484, 80 N.E. 375, the Court of Appeals of New York said:

'If the appellant's contention is correct, then there was no evidence upon which the Court of Claims could render judgment in favor of the plaintiff, and his complaint should have been dismissed as a matter of law upon a motion for a nonsuit. Such motion was duly made at the close of the plaintiff's case and denied. Defendant then proceeded to offer evidence upon its behalf, and at the close of all of the evidence the motion for a nonsuit was not renewed, but the case was submitted to the court for consideration, and thereafter what amount to findings of fact were made and judgment rendered. In fact, the request made at the close of all the evidence by the Deputy Attorney General,...