111 Kan. 397 | Kan. | 1922
The opinion of the court was delivered by
Ewart S. Hughes was driving an automobile west on Washington avenue in Kansas City, Kan., while L. \E. Tanner, who was in the employ of the Hudson-Brace Motor Company, was driving one belonging to that company north on Sixth street. The cars came together near the northwest corner of the intersection of these streets, the evidence being in conflict as to which struck the other. Hughes sued Tanner and the Motor Company for injuries received by him, the company asserting a counterclaim because of injury to its car. The plaintiff recovered a judgment and the defendants appeal.
2. The same rulings are attacked by the defendant company on the ground that there was no evidence that Tanner at the time of the collision was engaged in its business. The petition alleged that at all times therein referred to he was employed by the company and engaged in demonstrating its cars and was so working and employed at the time the accident occurred. The company’s answer contained an admission that he was “at the times mentioned in plaintiff’s petition engaged in the sale and disposition of” its cars “and was at said times . . . employed by it and engaged in demonstrating and selling” its cars. We consider this admission as having eliminated the issue referred to and rendered the introduction of evidence thereon unnecessary.
3. The same rulings are also challenged on the ground that the undisputed evidence showed that the plaintiff was guilty of contributory negligence. The jury found that the plaintiff’s car was .going fifteen miles an hour. This was a violation of the statute restricting the speed of automobiles in city streets to twelve miles an hour and to six miles at intersections. (Laws 1917, ch. 74, § 5.) Whether this conduct contributed to the accident, however, was a question for the triers of the facts. The plaintiff testified that he saw the defendants’ car while it was still a block away, but did not look for it again until he was half way across Sixth street, when it was too late for him to prevent a collision.. Whether this course amounted to contributory negligence was likewise a matter to be
4. The question as to which driver had the right of way is one to be considered in determining the matter of contributory negligence, whether or not it would-be controlling. Tanner testified: “I certainly thought I had time to cross the boulevard ahead of that car because I knew I was entitled to the right of way. I knew that Sixth street was a boulevard and knew the traffic ordinances of this town, and that the north and south traffic has the right of way.” The provision of the ordinance to which he obviously referred reads:
“Whenever vehicles approaching each other on different streets shall reach the intersection of such streets at the same time, the vehicles proceeding on the street running north and south shall have the right of way unless such east and west street is a boulevard, or a street on which street car tracks are located, in which event the vehicle proceeding on the boulevard or street on which said street car tracks are located shall have the right of way, but every such vehicle shall be kept under control so as to prevent danger of collision.”
The meaning of the ordinance appears to be that the north and south travel shall have the preference at an intersection except where the east and west street is a boulevard (or a car-line street) and the north and south street is not. Here the east and west street, as its name shows, was a boulevard. The defendants introduced an ordinance which they interpret as declaring the other street— Sixth — also to be a boulevard at this point. The plaintiff objected to the introduction of the ordinance on the ground that it had not been pleaded. The answer, however, alleged that Tanner had the right of way and this allegation we consider sufficient to support the evidence. The ordinance making a part of Sixth street a boulevard contains a provision excepting that portion between the alley north of Washington street and the street two blocks south of it, which is declared to be “a traffic way for 20 feet in the center thereof.” This exception leaves in some doubt the character of Sixth street at the place where the collision occurred. The ordinance regulating traffic contained this provision: “Everything else being' equal, the vehicle which has another vehicle on the right hand side shall have the right of way.” Although contrary to the general practice and to ordinances of other cities and in some states to the statutes (Huddy on Automobiles, 6th ed., §262; Fox
There appears to be some difference of opinion as'to the circumstances under which one who sues for injuries sustained in a collision of automobiles at a street intersection may be precluded from recovery as a matter of law because he attempted to cross it in front of a driver from the direction having the preference. (See Anderson v. A. E. Jenney Motor Co. [Minn.], 185 N. W. 378, and cases cited in connection therewith in a note in 20 Mich. Law Rev. 801.) Assuming the correctness of the majority decision in the Minnesota case we do not think it would follow that a driver who approached the crossing from -the disfavored direction can never maintain an action against the other for running into his car. The occasion for applying the rule of the statute or ordinance or pracr tice concerning the right of way arises only where the two vehicles approach the intersection at such distances and speed that a collision is probable unless one of them slows up. The giving of a preference to the driver on the right does not imply that the driver on the left is never justified in attempting to cross the intersection so long as there is in sight a car on his right which might by some unexpected burst of speed beat him to the point where their paths cross. The rule assumes the normal and reasonable operation of both cars. The fact of the legal speed limit being exceeded or that one car was going faster than the other would not necessarily control; but it is not negligence as a matter of law for a driver from
5. In answer to a special question asking them to state fully of, what the defendants’ negligence consisted the jury answered: “Defendant entering intersection oh wrong side of street at excessive rate of speed.” It is urged that the finding requires the verdict to be set aside because it shows reliance on a ground of negligence not set out in the petition or submitted in the instructions. There was evidence that Tanner entered the intersection on the left side of Sixth street just after passing a Ford car for which he turned out. This was not pleaded nor was any reference made to it in the charge to the jury. It does not affirmatively appear, however, that the jury regarded the fact that Tanner was on the wrong side of the street as an independent ground of negligence rather than one of the conditions that accompanied the negligent act of driving at excessive speed, which under the circumstances they regarded as negligence and as the proximate cause of the accident. At all events, inasmuch as a sufficient ground of negligence was specifically found, we do not think it necessary to order a reversal because of the inclusion of another ground which was unavailable because not pleaded. The defect in this regard is less serious than where an additional ground of negligence is included in the special findings without evidence to support it, and that has been held not to require a new trial. (M. K. & T. Rld. Co. v. Weaver, 16 Kan. 456.)
The judgment is affirmed.