204 P.2d 595 | Kan. | 1949
Lead Opinion
The opinion of the court was delivered by
This was an action for damages alleged to have been sustained when plaintiff was struck by an automobile driven by one of defendants. Judgment was for defendant. Plaintiff appeals.
The petition alleged that plaintiff was traveling south in his automobile being driven by his daughter about 3 a. m., on U. S. Highway 69 a few miles north of Pittsburg, and that while his automobile was parked a few feet west of the highway he was standing behind it and defendant Gillard negligently ran his car off the highway and onto its shoulder and against plaintiff, crushing him against his own automobile, and injuring him. The petition set out the negligence of defendant as failing to keep a lookout, excessive speed, failing to apply brakes, swerving from the paved portion of the highway, failing to sound signal of his approach, failing to keep his automobile under proper control and failing to operate his automobile at such speed as would enable him to bring it to a stop within the distance of his range of vision. The plaintiff was injured and prayed judgment in the amount of $40,000. The defendant Kansas Gas and Electric Company answered with a general denial and especially a denial that at the time of the collision Gillard was acting as its agent. No effort was made by plaintiff to prove such agency and that defendant dropped out of the case.
Defendant Gillard answered first with a general denial and specifically a denial that he was negligent. The answer further alleged
The reply was a general denial.
The jury returned a general verdict for defendant and answered special questions, as follows:
“1. Do you find that there was anything to keep the plaintiff from seeing the approach of the defendant’s car? A. No.
“2. At what speed do you find the defendant was operating his car up to a point about 300 feet from the point of the collision? A. Around 25 miles.
“3. Do you find that beginning at a point about 300 feet from the point of collision that the defendant slackened his speed and continued to slacken his speed up to the time of the collision? A. Yes.
“4. Do you find that the defendant’s car after reaching a point about 20 to 30 feet north and northeast of plaintiff’s car skidded on the pavement? A. Yes.
“5. If you answer question No. 4 in the affh’mative, state what if anything the defendant could have done that he did not do to keep the car from skidding into plaintiff’s car. A. Nothing.
“6. If you find for the plaintiff and against the defendant, set forth fully the acts of negligence of which you find the defendant was guilty. A.
No motion was filed by the plaintiff to strike out the answers to any of these questions. Plaintiff filed a motion for a new trial on the grounds of abuse of discretion by the trial court, misconduct of the jury and of the defendant, erroneous rulings and instructions, that the verdict was given under the influence of passion and prejudice of the jury, verdict contrary to the evidence, newly discovered evidence and verdict procured by corruption. At the hearing of the motion for a new trial plaintiff proffered proof as to the conduct of the jury during its deliberations. Some of this proffered evidence was admitted and some was not. The motion was overruled.
On account of the argument of plaintiff it will be necessary to take note of the evidence furnished by defendant. He testified that he saw plaintiff’s car while he was three hundred feet north of it, he was going about twenty or twenty-five miles an hour and it looked like plaintiff’s car was at right angles to the highway; that he immediately slowed down and continued to drive slow toward the south. He met a car coming from the south when he was about one hundred feet north of plaintiff’s car. He passed it on the right and continued on south. He testified that when he was
“I tried to keep the car from skidding. I tried to hold it in a straight line. I had had my brakes on slightly. I must have applied them a little more quickly and turned to the left. I was going about five miles an hour just before the collision occurred and I was still going that speed at the time of the collision.
“Q. Were you at that time under the influence of liquor? A. I must— would say no.”
On cross-examination he testified, in part, as follows:
“It looked like the Carpenter car was off the highway. The pavement was standard width — I would say around 18 feet wide. I had 18 feet of pavement to travel on going across the road. I did not go across the road until I was around 20 or 30 feet north of the Carpenter car. When I got within 20 feet of the Carpenter car I had a clear highway without an obstruction of any kind other than the Carpenter car. The rear of the Carpenter car was overhanging onto the pavement approximately two feet. I don’t know where Mr. Carpenter was standing because I never saw him.”
There was no testimony by any witness that defendant blew his horn or gave any other warning of his approach.
We thus have a story from the lips of defendant himself that he drove down the highway for three hundred feet with the plaintiff’s car in plain view all the time, the last fifty feet at about five miles an hour, and aware that he had lost or was losing control of his car, without giving any signal or warning whatever of his approach.
Plaintiff first quotes three instructions given the jury and points out there was no objection to them and they became the law of the case. These instructions were as follows:
“Instruction 15
“In bad weather, when visability is below normal or the highway is wet or slippery so as to constitute a traffic hazard, a motorist is held to a higher degree of care than when the weather is clear and the highway dry.
“Under such conditions the operator of a motor vehicle would be held to a higher degree of care in driving on the highway and observing the highway ahead, to be on the alert for other traffic or objects or obstructions on the highway, and this rule of law is particularly applicable when meeting or passing other vehicles or other objects on the highway, and under such conditions a driver should keep his vehicle under control and travel at such speed as to be able to avoid collision with another vehicle or other objects on the highway.
*694 “Instruction 16
“You are instructed that a motorist driving an automobile upon the highway must have it properly equipped with brakes and lights so that while driving upon the highway he may correlate his speed with vision and be able to stop, turn out, or otherwise avoid collision with objects upon the highway within his range of vision. Failure to do so constitutes negligence as a matter of law.
“Instruction 17
“You are instructed that it is the duty of a driver of an automobile traveling at night to have such a headlight as will enable him to see in advance the face of the highway and to discover obstacles in his path in time for his own safety, and to keep such control of his car as will enable him to stop and avoid colliding with obstructions that fall within his vision.”
It will be noted these instructions first deal with the higher degree of care to which a driver on a slippery highway is held, then the duty of a motorist to have his car properly equipped with brakes and lights and his duty to correlate his speed with his vision so as to be able to stop or turn or otherwise avoid the collision. It is noted the trial court told the jury that failure to do those things was negligence as a matter of law. Then the last instruction dealt with the duty of a driver as to headlights and control of his car generally. It may be stated in passing that these instructions were clearly favorable to plaintiff's theory of the case. They were given pursuant to our holdings in many cases. (See Eldredge v. Sargent, 150 Kan. 824, 96 P. 2d 870; also Wright v. Nat’l Mutual Cas. Co., 155 Kan. 728, 129 P. 2d 271; also Harrison v. Travelers Mutual Cas. Co., 156 Kan. 492, 134 P. 2d 681 and many others.j Plaintiff then argues that the uncontradicted evidence shows that defendant negligently failed to apply his brakes in time to bring his vehicle to a halt before striking the plaintiff, swerved from the paved portion of the highway, failed to sound a warning of his approach, failed to keep his vehicle under proper control and failed to operate his automobile at such speed as to enable it to stop within the distance of the range of vision provided by his headlights.
He argues from the above that the defendant was guilty of negligence as a matter of law and the special finding of the jury in answer to question number 5, as well as the general verdict, should be set aside and a new trial ordered.
We will examine this question from the standpoint of whether plaintiff should be granted a new trial because the verdict was contrary to the evidence.
In the first place, the uncontradicted evidence is that defendant
Taking all the surrounding facts and circumstances into consideration we hold that the failure of defendant to sound any warning constituted such negligence that defendant cannot be said to be absolved therefrom by the finding for defendant. The answer to question No. 5 was upon only one of the grounds of negligence pleaded in the petition.
At the conclusion of defendant’s evidence the plaintiff demurred to it on the ground that there was no evidence to base an instruction to the jury on the specific charges of contributory negligence made in his answer. This demurrer was overruled. Attention is called to this demurrer because of what happened later.
The trial court proceeded to instruct the jury. Amongst these instructions were the following:
“Instruction 7
“Plaintiff’s claim in this case is based upon the alleged negligence of the defendant.
“ ‘Negligence’ is defined as the failure to observe for the protection of another person that degree of care, precaution and vigilance which circumstances would justly demand.
*696 “ ‘Ordinary negligence’ is the lack of ordinary care.
“ ‘Ordinary care’ is that degree of care and precaution that a person of ordinary prudence is accustomed to use under like or similar circumstances.
“Negligence must be established as the proximate cause of the injury or damage complained of, if any is shown, before the party charged with negligence can be held liable for the damage.
“ ‘Proximate cause’ is an act or omission which naturally leads to and is directly instrumental in producing a given result.
“Before it can be established as the proximate cause of injury or damage, negligence must be such that a person of ordinary caution and prudence should have foreseen that some injury or damage would probably arise from the existing negligence and could have been reasonably expected, although the specific injury or damage need not have been foreseen.
“ ‘Contributory negligence’ is the lack of ordinary care on the part of the person injured or damaged by the actionable negligence of another, contributing to the injury or damage, or the proximate cause thereof, without which the injury or damage would not have occurred. Contributory negligence, if established, is a bar to recovery. That is, if you find that the plaintiff was injured or damaged by the negligence of the defendant, and you further find that the plaintiff was also guilty of negligent acts which, combined with the negligence of the defendant, contributed to plaintiff’s injury or damage, and that plaintiff’s own negligence was the proximate cause of the injury or damage, and that without plaintiff’s own negligence the injury or damage would not have occurred, then that would constitute contributory negligence on the part of the plaintiff and plaintiff could not recover against the defendant.
“The burden of proof is upon the defendant to prove the defendant’s allegation of plaintiff’s contributory negligence by a preponderance or greater weight of the evidence, unless plaintiff’s own evidence has shown that he was guilty of contributory negligence, as otherwise herein instructed.
“Instruction 13
“You are instructed that if you believe from the evidence that at the time, place and under the circumstances of his injuries, plaintiff exercised ordinary care — that is, such care as an ordinarily prudent person would exercise under like circumstances — then he was not guilty of contributory negligence, and you would not be warranted in finding against the plaintiff on that ground.
“The burden of proof is on the defendant to show by the greater weight of all the evidence that the plaintiff was not exercising ordinary care and that such failure to exercise ordinary care directly contributed to his injuries and, unless the defendant has so proved such facts, you cannot find for the defendant on the defense of contributory negligence.”
Also note the following:
“Instruction 10
“The defendant claims that the plaintiff failed to exercise ordinary care for his own safety just prior to the accident, and in this connection you are instructed that if you find by a preponderance of the evidence that the plaintiff*697 could have, by the exercise of ordinary care, moved to a position of safety so that he would not have received any injury, then your verdict must be for the defendant.”
It will be noted that instruction No. 1 set out the issues made in the pleadings, especially the allegation in the answer as to contributory negligence. Instruction No. 7 dealt in part with contributory negligence on the part of plaintiff and the question of contributory negligence should not have been submitted to the jury. Defendant argues here that plaintiff cannot be heard to complain of these instructions here because he did not object to them in the trial court. Plaintiff did, in the demurrer just referred to, call the trial court’s attention to the fact that defendant had not proved any of the allegations of contributory negligence on the part of plaintiff. In view of that demurrer it can hardly be said that the instructions on contributory negligence were given without objection. Instruction No. 10 was objected to by plaintiff.
It placed on plaintiff the duty of moving out of the way after his companions had warned him. There was no duty on him to keep a lookout for the approach of a car.
It was error under all the facts and circumstances to give that instruction.
On the hearing of the motion for a new trial plaintiff offered to prove by one of the jurors that after the jury retired she expressed an opinion to the other jurors that plaintiff had been drinking. This was objected to because it was an attempt to impeach the verdict. The objection was sustained and thereupon counsel for defendant stated “whether she said it or not didn’t make any difference, I argued for thirty minutes that he had been.” The court did not permit any further inquiry tending to impeach the verdict. We are not concerned with that here. We are concerned with the fact that there was no evidence at all in the record and for counsel to argue for thirty minutes or even five minutes that he had been was misconduct and under the circumstances prejudicial to the plaintiff.
On account of the errors noted, some of them trivial and some not, called to the attention of the trial court, the plaintiff was denied a fair trial.
The judgment of the trial court is reversed with directions to award plaintiff a new trial.
Dissenting Opinion
(dissenting): In my opinion a correct disposition has
It is said that argument of defendants’ counsel to the jury constituted misconduct and was prejudicial to the plaintiff. This is reflected in paragraph 5 of the syllabus and the corresponding part of the opinion. What is there said ignores the record and as I see it is contrary to it. The record discloses that while there was some testimony that plaintiff had not been drinking, one Brenner who helped take plaintiff Carpenter to the hospital after the accident, testified that he got in the back seat of an automobile and held Carpenter’s head and that he smelled intoxicating liquor and he was further asked the question, “And state whether or not in your opinion he had been drinking intoxicating liquor” and answered, “He had the smell of alcohol.” No objection was made to this testimony when it was given. No objection was made to the argument of counsel to the jury when it was being made. The matter was not specifically mentioned in the motion for a new trial. The argument referred to had a basis in the record and the belated attempt to show that the jury considered the matter is not entitled to the weight this court gives it. In any event it had nothing to do with the primary question, was defendant guilty of negligence, a question the jury resolved in his favor.
Considerable space is also given to claimed error in an instruction pertaining to plaintiff’s contributory negligence. In view of the jury’s finding that the defendant was not guilty of negligence it became immaterial whether or not plaintiff was guilty of negligence. Assuming, however, it was material, it is not sound practice to isolate one instruction and weigh it without regard to others covering the same subject matter. See decisions noted in West’s
In my opinion well-established rules of appellate practice indicate that the judgment of the trial court should be affirmed.