110 Kan. 91 | Kan. | 1921
The opinion of the court was delivered by
A collision occurred at the intersection of Tenth street and Morris avenue in Topeka, between a Ford car driven east on Tenth street by its owner, W. B. Fox, and a truck driven north on Morris avenue by an employee of 0. McCormick. Fox sued McCormick on the ground that the collision was due to the negligence of his driver and recovered a judgmént from which this appeal is taken.
A street-car track occupies the middle of Tenth street east of the place referred to and at that point turns south along Morris avenue, approaching the southeast corner of the intersection so closely that when a street car is standing on the curve an automobile driven north on the east side of Morris avenue has not room to pass between it and the curb. A street car was occupying that position at the time of the accident. There was a conflict of evidence as to which car ran into the other, but the verdict must be deemed for present purposes to establish the correctness of the plaintiff’s version of the affair, according to -which the collision occurred in this manner: The plaintiff’s Ford arrived at the intersection about the same time as the street car and continued straight ahead. The defendant’s truck swerved to the west to pass the street car and while continuing north on the west side of the intersection ran into the Ford after it had passed the middle line of Morris avenue.
“You are instructed that if you find from the evidence, that when the truck of the defendant reached the point in Morris avenue near the intersection of said avenue with Tenth street, that said truck could proceed no farther on the east side of the street on account of a street car obstructing the passage way on said east side of Morris avenue, that the person operating defendant’s truck would not be compelled to stop the said truck and wait until the street car moved so that he could proceed on the east side of the street; but that, under such circumstances, the person in charge of defendant’s truck would have the right to drive said truck to the west side of the street if necessary to pass said street car, and if in doing so, he exercised reasonable and ordinary care for the safety of others, he would not be guilty of negligence.”
The requested instruction is open to criticism as likely to be understood to mean that as a matter of law the defendant could not be required to stop until the street car had gone on but had an absolute right under any circumstances to proceed on the left side of the street. So far as the requested instruction was adapted to protect the defendant against being held liable merely because he had violated some general rule which was inapplicable because of exceptional conditions its place was sufficiently taken by the repeated statement in the course of the charge that no liability could be founded upon any unlawful manner of driving that did not contribute to the injury or constitute its proximate cause.
Thé judgment is affirmed.