118 P.2d 566 | Kan. | 1941
The opinion of the court was delivered by
This was an action to recover damages for personal injuries sustained in an automobile accident, and from an adverse judgment the plaintiff appeals, assigning as error the rulings of the trial court excluding certain evidence offered by the plaintiff and the refusal of the trial court to give certain instructions to the jury as requested by the plaintiff.
The pleadings may be summarized. In his petition plaintiff alleged that he was a resident of La Junta, Colo., and on February 18, 1939, with his two sons and a daughter-in-law, was proceeding south along state highway No. 83 in Haskell county, Kansas, just north of the point where it meets state highway No. 160 which extends to the west, and where it meets a county road which extends to the east; that upon the county road was a stop sign directing persons driving on the county road to stop before entering highway No. 83; that plaintiff was proceeding south on highway No. 83 and
Plaintiff’s reply admitted execution of the above' release, but alleged that its terms were agreed on by John Plummer and T. M. Bair, owner of the car in which plaintiff was riding, and that T. M. Bair acted only for himself and not as agent of plaintiff; that the release was presented to plaintiff at a time when he was suffering great pain, and that certain drugs, the exact nature of which was unknown to him, had been given him, and he was mentally dulled and confused and did not understand the release and its effect; that when the release was given the extent of his injuries was not ascertained ; that the amount paid did not exceed the damages sustained by T. M. Bair; that he received no portion of the money, and that the release was the result of mistake and misunderstanding and without adequate, or any, -consideration passing to the plaintiff therefor.
At the trial the jury returned a general verdict for the defendant. During the trial plaintiff offered evidence tending to sustain the allegations of his petition. In connection therewith, one of plaintiff’s
In connection with both rulings, it is to be noted that on the hearing of the motion for a new trial there was no showing by affidavit, deposition or oral testimony of the witness, what answer would .have been made had there been no objection. Under G. S. 1935, 60-3004, it is specifically provided that in all cases where the ground of a motion for a new trial is exclusion of evidence, such evidence must be produced in one of the manners above mentioned. The testimony sought to be adduced was not elicited on cross-examination, but on direct examination. (See McIntosh v. Oil Co., 89 Kan. 289, syl. ¶ 2, 131 Pac. 151.) Neither were answers given and then stricken out. (See Treiber v. McCormack, 90 Kan. 675, 679, 681, 136 Pac. 268.) There was no requisite showing on the hearing of the motion for a new trial, and the question is not open for review on appeal. See the many cases noted in the annotations to the above section of the code, both in the 1935 statutes and in the 1939 supplement thereto.
Plaintiff makes no contention the instructions to the jury were not correct, but does contend the trial court erred in refusing to submit two requested instructions, each dealing with contributory negligence. No special interrogatories were requested, and as has been noted, the general verdict was for the defendant. No contention is made that the verdict is contrary to the evidence or that it is not supported by the evidence. The defense was twofold — that plaintiff was guilty of negligence contributing to his injuries, and that there
No error has been made to appear and the judgment of the trial court is affirmed.