204 P.2d 587 | Kan. | 1949
The opinion of the court was delivered by
Plaintiffs brought this action to recover damages for the death of their son, Garry Eldon Shirack, two and one-half years old, alleged to have resulted from the negligence of defendants. The jury answered special questions and returned a general verdict for plaintiffs. Defendants moved the court “to render judgment ... in their favor against the plaintiffs upon the answers to special questions . . . and the undisputed evidence notwithstanding the general verdict. . . .” This motion was overruled. Defendants have appealed and present this ruling. It is the sole question presented for review.
The record may be summarized as follows: In Salina, Ninth street is a north-and-south street, 80 feet wide, paved with brick 46 feet, 7 inches, with parkings on each side of the pavement and
On Saturday evening, August 24, 1946, Mr. and Mrs. Shirack, who had been out at their farm at work, and Lois Caldwell, who had’been with them, came to the Caldwell home for dinner. They reached there about six o’clock p. m. Garry was anxious to play with Mike Godbey, ate his dinner hurriedly, and Lois Caldwell took him across the street to the Godbey home. Mike was playing
The answer admitted the residence of the parties as alleged in the petition; that the child Garry died intestate; that he was of the age of about two years and six months, and “that he died as a result of injuries received in a collision with an automobile owned by the defendant, B. B. Gage, and operated by the defendant, Kent Davis.” It contained a general denial of matters not admitted and alleged negligence of plaintiffs in not properly caring for their child. These allegations were denied in a reply.
Answering special questions the jury found the truck was going thirty-five miles an hour when it hit the child; that it was 160 feet
After the’verdict was received defendants filed the motion previously mentioned for judgment for defendants upon the special questions and the undisputed evidence. They also filed a motion for a new trial upon numerous grounds. Both motions were overruled. No complaint is made of the overruling of the motion for a ■new trial. The sole contention is that the court erred in not sustaining their motion for judgment.
Counsel for appellants do not argue that the answers to the special questions are so in conflict with the general verdict that the latter cannot stand. If such an argument had been made we think it would have had no substantial basis.
Counsel for appellants argue that the “uncontradicted” evidence shows clearly that plaintiffs were guilty of contributory negligence which barred their recovery. In short, they ask this court to examine the evidence and hold in accordance with their view. Under the record in this case this may be classified as a robust request. In their answer defendants pleaded that the plaintiffs were guilty of negligence which barred their recovery. That was put in issue by plaintiffs’ reply. Defendants did not file a demurrer to plaintiffs’ evidence. They make no complaint about the instructions of the court, hence we must assume that the court gave all necessary and proper instructions pertaining to that feature of the case. They did not move for a directed verdict at the close of all the evidence. In short, they submitted that question to the jury, and the general verdict for plaintiffs was a finding against them. The matter of weighing the evidence and passing upon the credibility of witnesses is for the trial court, not this court. The trial court has performed
The principles of law which govern the question are at least fairly well settled. Normally the question of negligence, either of defendant or of the plaintiff, is a question of fact, and the burden of proof is upon the party who pleads it. It is only where the negligence is so clear that reasonable minds could not reach different conclusions concerning it that the court is authorized to say that there was or was not negligence.
Questions of that kind have arisen in actions by parents for damages to children, or in actions for damages for their death, alleged to have resulted from the negligence of the defendant. In relatively few of the cases where contributory negligence of plaintiff was relied upon as a defense the facts have been such that the courts have said, as a matter of law, that the plaintiff’s negligence barred his recovery. See Sullivan v. Chadwick, 236 Mass. 130, 127 N. E. 632, where the parents, who lived upon a street traversed by as many as one hundred automobiles and many streetcars every hour, permitted their son, three years and nine months old, to wander for two or three hours on the public streets; Stachowicz v. Matera, 257 Mass. 283, 153 N. E. 547, where a mother, without circumstances justifying it, left her child, two years and seven months old, unattended, in front of a store across a busy street from her home and walked away, when the child ran into the street and was injured. Some other cases are collected in the annotation in 51 A. L. R., pp. 213 to 216.
In a few other cases the courts have held under the facts that as a matter of law the plaintiff was not negligent and the question should never have been submitted even to a jury. (Deach v. St. Paul City Railway Co., 215 Minn. 171, 9 N. W. 2d 735; Barker v. Savas et al., 52 Utah 262, 172 Pac. 672. Some other cases on this point are collected in the annotation in 51 A. L. R., pp. 216 to 218.
In a great majority of such cases the courts have held that the question of plaintiff’s contributory negligence was a question for the jury. This court has so held in Schaubel v. City of Manhattan, 102 Kan. 430, 170 Pac. 984. See, also, C. & A. R. R. Co. v. Logue, 158 Ill. 621, 42 N. E. 53; I. C. R. R. Co. v. Warriner, 229 Ill. 91, 82 N. E. 246; Walsh v. Loorem, 180 Mass. 18, 61 N. E. 222; Albert v. Terminal Railway Co., 192 Mo. App. 665, 179 S. W. 955; Dattola et ux.,
The question, of course', in each case is whether the parents used due care. This involves the consideration of all the facts and circumstances which would have any bearing upon the matter — the economic condition of the parents, who and under what circumstances they live, the age and intelligence of the child, the circumstances under which the injury occurred, the likelihood that they should have considered the particular injury which did occur, in fact all the circumstances that would have any bearing upon the question should be taken into account, including the credibility of the witnesses who testified. (See, Restatement, Torts, § 496; 38 Am. Jur. 892, Negligence, § 207; 45 C. J. 1012.)
To avoid the charge of contributory negligence parents are not compelled to watch their small children every minute. They are required only to use due diligence. It is possible that a child, having reasonable care, may elude its parents and get into a place of danger.
There is a suggestion in appellants’ brief that plaintiffs were negligent in permitting Lois Caldwell to take the child across the street and leave him to play with Mike Godbey. This view lacks merit. Many cases have dealt with similar situations. (See annotations in 123 A. L. R. 147.)
Neither does the record sustain the contention of appellants that the child was left on a sidewalk in front of the Godbey home “unattended.” From the evidence, which we only scantily outlined earlier in this opinion, the jury might well have concluded that the child was left at a neighbor’s home to play with a neighbor’s child, as many a parent has done heretofore and will do hereafter.
Appellants cite Smith v. United Power & Light Corp., 142 Kan. 723, 51 P. 2d 976. In that case the mother left her twenty-two months old daughter with her five-year-old son to play in a small garden enclosed with a woven wire fence, having a gate which did not quite close and which she did not fasten. She then went about her work and paid no attention to the children for fifteen or twenty minutes, when her son came and told the mother the little girl had wandered away. A search developed that she had fallen into a nearby creek and drowned. In the parents’ action for her wrongful death it was held they were barred by their negligence. We think
In order to be relieved of the charge of contributory negligence plaintiffs were not required to anticipate that someone would drive along the street with a loaded truck which had no effective brakes, driven by a person who obviously exercised no care to avoid the child after the driver of the truck saw the child on the street and start across. Even if his brakes were not functioning he could have changed his course in a wide street where there was no other traffic and have avoided hitting the child. Counsel for appellants very properly do not contend that defendants were not negligent. Indeed, the negligence was so great that the jury might have regarded it as the sole proximate cause of the collision. Findings Nos. 4 and 12 so indicate.
We find no error in the record. The judgment of the court below is affirmed.