124 P.2d 470 | Kan. | 1942
The opinion of the court was delivered by
This was an action to recover damages for wrongful death. The deceased person was Mary Cruse, who was survived by her husband and two adult daughters. The husband was appointed as administrator of.his wife’s estate and brought the action in his representative capacity.
The petition alleged that on October 27, 1940, Mary Cruse was riding in an automobile driven by her husband on a country road west of Newton, and in a collision with an automobile negligently operated by the defendant, she sustained injuries from which she died. The answer of the defendant, among other things, alleged the collision occurred solely as the result of negligence of the husband, who was then and there acting for his wife, and through the negligence of Mary Cruse. Plaintiff’s reply properly denied allegations of agency.
Trial was had by a jury. Defendant’s demurrer to plaintiff’s evidence was overruled, and the trial proceeded. The jury answered special questions and returned a verdict in favor of plaintiff. Defendant’s motions for judgment notwithstanding the verdict and for a directed verdict were denied and from those several rulings defendant appeals. Plaintiff’s motion to set aside two answers to special questions was sustained in substance. His motion for .a new trial was denied, and from the latter ruling he has appealed.
We shall consider first the defendant’s contention the trial court erred in not sustaining his demurrer to plaintiff’s evidence. The gist of this contention is that the plaintiff, in his individual capacity, and the deceased were each guilty of contributory negligence, and we review the testimony only as it pertains to that contention.
We first summarize the evidence with respect to the site of the accident, which occurred at an intersection of a county road Tuning north and south and a township road running east and west. At the intersection there were no stop signs on either road. The county roadway was about twenty-eight feet wide and the township road
Plaintiff was the only witness testifying in his behalf with respect to the accident. He stated that on Sunday afternoon, October 27, 1940, he and his wife went for a ride, that he was driving the car and they were proceeding westwardly on the township road. He drove down the hill toward the bridge, but did not see the danger sign. When crossing the bridge he could not see any distance north or south. After crossing the bridge he went up the incline, and when about twenty-five to thirty feet east of the intersection, he was traveling from ten to fifteen miles per hour. At that point he looked to the north and saw defendant’s car between two hundred fifty and three hundred feet to the north -and approaching him, and thought it had a speed of thirty to thirty-five miles per hour. He looked south and s$w no one coming. He stated the intersection was rather a blind corner and that at the rate he was driving he could stop in ten feet. After he saw the defendant’s car he did not look again to the north but proceeded west and into the intersection, without deviating or putting on his brakes. The next time he saw
Appellant makes no contention plaintiff’s evidence failed to show he was guilty of negligence. His demurrer, however, does raise at least four questions:
1. Was the plaintiff husband, in driving the car in which he and his wife were-riding, guilty of contributory negligence?
2. If so, was that negligence imputable to his wife?
3. If not, was she personally guilty of contributory negligence, and—
4. If the husband was guilty of contributory negligence not imputable to his wife, and she was not guilty of contributory negligence, what was the effect on his being entitled to recover as a beneficiary of her estate?
We shall consider these in their order.
Contributory negligence has been defined as conduct on the part of a plaintiff which falls below the standard to which he should conform for his own protection and which is a legally contributing cause, cooperating with the negligence of the defendant in bringing about the plaintiff’s harm (Restatement, Torts, sec. 463) and that it is conduct which falls short of the standard to which the reasonable man should conform in order to protect himself from harm (id., sec. 466). And in the comment respecting the last section it is'said that it is,immaterial that the defendant’s conduct falls farther below the standard of a reasonable man than does that of the plaintiff.
It has been repeatedly held that when the facts relating to contributory negligence are such that men of reasonable minds might reach different conclusions, the question is for the trier of the fact, otherwise it is one of law. (Keir v. Trager, 134 Kan. 505, 7 P. 2d 49; Sponable v. Thomas, 139 Kan. 710, 33 P. 2d 721; Jones v. McCullough, 148 Kan. 561, 83 P. 2d 669; and cases cited.)
While the general rule is that the burden of establishing the plaintiff’s contributory negligence rests upon the defendant (Restatement, Torts, sec. 477) if plaintiff’s own evidence shows him guilty of negligence which precludes his recovery, the defendant may take advantage by demurrer. (Houdashelt v. State Highway Comm., 137 Kan. 485, 21 P. 2d 343.)
We think that men of reasonáble minds would agree that the conduct of Mr. Cruse in operating his car was below the standard to which he should have conformed for his own and his wife’s safety.
Did the plaintiff’s evidence disclose that the deceased wife was guilty of contributory negligence as a matter of law? We are asked to assume that she saw and knew or was in a position to see and know what her husband did. Possibly so. There is no evidence as to what she may have said or done, further than that immediately before the collision she made no statements to him. If we assume she saw and knew all that her husband did, we may also assume that she would take precautions for her own safety, and that she did not do more than the evidence shows because she believed he would stop his car or otherwise so drive it as to avoid harm. Ferguson v. Lang, supra, does not support appellant’s contention. There the wife’s own testimony established her contributory negligence. Bearing in mind the rule as to burden of proof, it may not be said plaintiff’s evidence showed Mrs. Cruse was guilty of contributory negligence.
The next question for consideration is what is the effect on the action for wrongful death where the husband is guilty of contributory negligence but the deceased wife is not. Generally speaking, in an action for wrongful death, recovery is limited to pecuniary loss by the statutory beneficiaries (Pattrick v. Riggs, 148 Kan. 741, 742, 84 P. 2d 840). In the case at bar there was evidence as to the loss sustained by the husband but none whatever as to the daughters. Appellant contends that if the husband was guilty of contributory negligence neither he nor any of the next of kin may inherit, and in support he cites Turner v. Railway Co., 106 Kan. 591, 189 Pac. 376. The case is not in point. There the deceased was held to be guilty of contributory negligence. Generally in such case, under a wrongful-death statute similar to ours, the husband may not recover, and any amount he would otherwise have received is deductible from the amount recoverable by the survivors as a group, the rest being distributed among the survivors as though the husband did not exist (Restatement, Torts, sec. 493). However, we need not consider at length the question whether the deceased was barred from recovery
We come now to the cross-appeal. The principal complaint is that the trial court erred in not allowing plaintiff a new trial on the question of damages only. We need not consider whether the evidence compelled a larger verdict insofar as the husband is concerned because, as is shown above, he is not entitled to recover anything. There was no evidence the two daughters sustained any pecuniary loss.
Complaint is also made concerning statements of counsel for defendant in arguing the cause. It is conceded no objection was interposed when the statements were made. Waiving any discussion that the complaint comes too late, it appears the only verdict that could have been rendered was for one dollar, and comment made in argument, good or bad, discx'eet or otherwise, could not affect the result.
The judgment of the lower court is reversed and set aside, and the cause remanded with instructions to render judgment in favor of plaintiff and against defendant for one dollar and costs.