10 P.2d 873 | Kan. | 1932
The opinion of the court was delivered by
This action was brought by Anna Eaton, widow of Ephraim Eaton, deceased, against B. A. Salyer, doing business as the Salyer Produce Company, and R. A. Stewart, the employee of Salyer, to recover damages for injuries alleged to have been negligently inflicted upon her husband by striking him with a truck, which injuries resulted in his death.
In a trial with a jury, a verdict in her favor for $1,500 was returned, which the court approved and judgment was accordingly entered. Defendants appeal, contending only that the findings and judgment are not supported by the evidence, and that the death of Ephraim Eaton was the result of his own negligence.
There is a viaduct on Branner street in Topeka, running north and south, and defendants’ truck was being driven south over the viaduct, which reaches the level on Third street, where the accident
One witness, Hentzler, testified that the deceased was about the center of the street when he saw him. A couple of cars were then coming from the south, one of them went between Mr. Eaton and the east curbing. “He just stopped and kinda looked around.” Another witness called by the defendants, Burgett, testified that he turned his head a little bit to the north, and the truck “had gone up to the old man, and he was trying to get out of the road of it, and the man with the truck was tiying to get on to the curb to clear him.” There was testimony, too, that the truck which hit him “had-not come into sight then, it was coming over the viaduct and down the slope. It looked as if the trucks were trying to pass each other on the viaduct.” A witness stated that there were a number of trucks coming down the viaduct and seemed to be racing with one another, finally one got ahead and the other fell behind it, and that the trucks were then at about one hundred feet from the south end of the viaduct.
While some of the witnesses testified that there was excessive speed, saying that the truck was being driven at thirty-five miles an hour, the special finding of the jury was that the speed of the truck at the time of the collision was twenty to twenty-five miles an hour. There was also a special finding that the defendants were negligent in the speeding of the truck, and a special finding, also, that the deceased was not guilty of contributory negligence.
In this appeal defendants contend that there was contributory negligence on the part of the deceased which should bar a recovery for damages. Negligence of defendants was found by the jury and
Under the facts in the case it cannot be held that Eaton was guilty of contributory negligence as a matter of law. It is clearly a case for the determination of a jury, and the jury after considering the testimony of the witnesses and the reasonable inferences arising therefrom, have specifically found that Eaton was not guilty of contributory negligence.
No complaint is made of the instructións of the court, and it must be assumed that the court correctly stated the law of negligence as applied to the facts of the case. That court has approved the findings and verdict of the jury, and it follows that the judgment must be affirmed. It is so ordered.