109 Kan. 314 | Kan. | 1921
The opinion of the court was delivered by
A motor truck owned by the defendant, C. J. Eriksen, and driven by Vernon Pettit, his employee, was driven upon a sidewalk, running down and severely injuring the plaintiff, M. A. Snyder, who was walking upon the sidewalk. She recovered a judgment for $500 and the defendant appeals.
Defendant was a dealer in household goods in Lawrence, and had several employees, among whom was Pettit who was principally engaged in blacking stoves and assisting other employees in the delivery of goods. On the day of the accident the employees of defendant were engaged in assembling and setting up an exhibit of defendant’s goods at the fairgrounds near the city. For that purpose they used two trucks. One of them was driven by an employee, Crossgrove, and the other by McPherson. Pettit went but to the fairgrounds in the truck driven by McPherson, and after working for a short time, McPherson and Pettit returned to the city for other goods, McPherson driving the truck. When they arrived at the store McPherson found customers waiting for attention and he directed Pettit to drive the truck loaded with exhibits back to the fairgrounds, and this was. done. When the noon hour arrived, Crossgrove, who was then in charge of the exhibits, said to Pettit, “as you have a long distance to go to dinner, you had better take the truck so you will get back to work sooner.” He took the truck and while on the way to dinner he had difficulty with the steering gear and was unable to guide or control the truck. He ran the truck against a wagon and then over the curb and up on the sidewalk, knocking down and running upon the plaintiff who happened to be walking there.
The charges of negligence were the driving of the truck at a dangerous rate of speed on the wrong side of the street, in failing to stop the truck when it approached the wagon in the
“For all acts done by a servant in obedience to the express orders or directions of the master, or in the execution of the master’s business, within the scope of his employment, and for acts in any sense warranted by the express or implied authority conferred upon him, considering the nature of the services required, the ■ instructions given, and the circumstances under which the act is done, the master is responsible.” (Ritchie v. Waller, 63 Conn. 155, 160.)
The sixth instruction of which complaint is made is in accord with the views stated and fairly presented the questions of fact to the jury. Attention is also called to the seventh instruction wherein the court told the jury that, “if the young lnan was using this truck in his own private matter, of his own volition, to go to his dinner, I think perhaps Mr. Ericksen would not be responsible. If, however, his immediate superior that day, Mr. Crossgrove, directed him to take that truck and use it to go to his dinner in order that he might get back to his work sooner, then its use would be right in line with his em
Other criticisms are made of the instructions, but we find nothing substantial in them.
An attack is made on the action of the court in reforming and explaining twentymine special questions that were presented for submission to the jury. Some of these were stricken out because they were repetitions and others because they were not proper or material. Some that involved several propositions were properly subdivided and reformed so that each should relate to a single ultimate fact. The most complaint is made of the action of the court in explaining the questions to the jury. As an example of the action taken, the first question asked was: “In what capacity was Vernon Pettit employed by the defendant, Eriksen, on the day of the injury?” As to that the court said: “Well, the undisputed evidence, gentlemen, that day he was employed as an assistant to Mr. Crossgrove. Nobody disputes that. He was helping Mr. Crossgrove.” The second question was: “At the time of the accident and the injury to the plaintiff, was said Vernon Pettit engaged in the business of Eriksen?” The court stated: “Now, that’s at the time of the accident down here on the street. Well, I told you that, gentlemen. If he was pursuing his owin business, he would not be. If he was acting under
After the jury returned their answers, the court examined them and, finding some of them to be indefinite and incomplete, required the jury to retire and make more explicit and complete answers. To the fourth question: “At the time of the accident and injury to plaintiff, was said Vernon Pettit, the agent, servant o!r employee of Eriksen for the purpose of running and operating said truck?” the answer first returned was: “Under orders.” The answer finally returned was: “Yes.” In answer to question ten: “Was the injury of plaintiff caused by an unavoidable accident?” the first answer was: “Yes, by a capable driver.” This was an obvious misunderstanding of the question. The court after reminding them that an unavoidable accident was one where no one was to blame, gave them an opportunity to make a correction of an error which the jury readily recognized and the answer was changed to “No.” To the question: “Had Crossgrove any authority from Eriksen to employ Pettit to run or operate said truck or to allow him to use it?” the answer was: “No testimony as to that.” Their attention was drawn to the misconception and inconsistency, by the court, and after calling their attention to the declaration of law that had been made respecting the relationship between the defendant, Crossgrove and Pettit, the jury changed the answer to “Yes.”
Where special findings are indefinite and incomplete or there has been a manifest. misunderstanding of . questions asked, it is proper and indeed it is the duty of the court to require the jury to make more definite answers or to correct answers where there has been obvious misinterpretation of the questions. It is not proper for the court to change findings understandingly made, merely to make them consistent with the general verdict. It has been determined to be the duty of the court upon motion of either party to require the jury to make their answers responsive to the questions asked
At the close of defendant’s evidence the court on the application of plaintiff permitted her to amend her petition so as to allege in more detail that the truck was driven in violation of an ordinance of the city, which was produced. The original petition had alleged in general terms that it 'had been driven in violation of the laws of the state and the ordinances of the city. No error was committed in allowing the amendment.
In view of the evidence as to the extent of the injuries the claim that the damages awarded ($500) is excessive, cannot be sustained. While the injuries are not permanent in their nature, the extent of the injuries and the suffering that resulted from them leads us to think that the award is not unreasonable.
The judgment is affirmed.