192 P.2d 174 | Kan. | 1948
The plaintiff in this case was injured while a passenger on a crowded bus which stopped suddenly. The defendants contended that it was necessary to stop the bus suddenly because of an emergency which developed without fault of the driver of the bus. A jury returned a verdict for the plaintiff and answers to special questions submitted by the court. The court set aside the verdict and entered judgment for the defendants on the jury’s answers to the special questions.
The plaintiff moved to set aside the answers to certain of the special questions and for a new trial. Such motions were overruled. On appeal to this court, the plaintiff asserts that the trial court erred in refusing to sustain the plaintiff’s motion to set aside the answers to certain special questions, in overruling the plaintiff’s motion for a new trial and in setting aside the general verdict and entering judgment in favor of the defendants.
The principal question presented is whether the trial court ruled erroneously in entering judgment for the defendants upon-the jury’s answers to the special questions. The questions and answers follow.’
“No. 1. At what rate of speed was the bus being operated just prior to the application of the brakes by the operator? A. 12 miles per hour.
“No. 2. Was this a reasonable rate of speed under the circumstances? A. Yes.
“No. 3. How far was the bus from the automobile when the automobile commenced its turn to the west? A. 30 feet.
“No. 4. Was the driver of the bus suddenly placed in a position of peril by such automobile turning in front of him? A. Yes.
“No. 5. If you answer question No. 4 in the affirmative, then state whether the bus operator used his best judgment and followed the course of action which seemed to him best suited to prevent a collision. A. Yes.
“No. 6. Did the defendant exercise the highest degree of care which the circumstances demanded? A. Yes.
“No. 7. Was the manner in which the bus stopped, proper under the circumstances? A. Yes.
“No. 8. Was the manner in which the automobile which turned in front of the defendant’s bus, was operated, the direct and proximate cause of the plaintiff’s injuries? A. No, it was not the direct cause, but we believe that it was the primary indirect cause of the plaintiff’s injuries.
“No. 9. Was the manner in which the bus was stopped, the direct and proximate cause of plaintiff’s injuries. A. Yes.”
The plaintiff moved to set aside the answers to questions 5, 6 and 7 for the alleged reason that the answers were contrary to the evi
The second asserted error is that the trial court should have sustained the plaintiff’s motion for a new trial. The motion for a new trial was based on two grounds only. One was that the verdict was given under the influence of passion or prejudice. No evidence was introduced to support such a contention and we are not surprised because the general verdict of the jury was in favor of the plaintiff. The second ground for the motion for a new trial was that the verdict was in part contrary to the evidence. The point has been abandoned on appeal, and therefore, we cannot consider it. The plaintiff in this court attempts to supplement the record by stating that in connection with the argument on the motion for a new trial, counsel for the plaintiff, in fact, contended that the answers to special questions 5, 6 and 7 were inconsistent with the answers to other special questions, with the general verdict and the evidence. An affidavit to such effect, made by one of the attorneys who tried the case in the trial court, appears in the abstract. We cannot consider the affidavit. In this case the attorneys for the defendants do not question the truth of the affidavit. But it frequently occurs that attorneys are unable to agree* upon what was or was not said in arguments to a court. Consequently, if we permitted the record to be supplemented by affidavits of attorneys, this court would be required
The third and final specification of error is that the trial court erred in setting aside the verdict rendered by the jury and rendering judgment in favor of the defendants. The defendants had filed a motion requesting such a ruling. Counsel for the plaintiff contend again in support of the specification of error that the answers to the special questions were consistent with the general verdict; that every reasonable presumption will be indulged in favor of the general verdict; that when special findings are susceptible of more than one interpretation, the one which harmonizes with the general verdict should be adopted; and that findings must be interpreted together and given any construction of which they are fairly susceptible that will support the verdict. In support of such contentions, they cite Osburn v. Railway Co., 75 Kan. 746, 90 Pac. 289; DeHardt v. Railway Co., 100 Kan. 24, 163 Pac. 650; Lesher v. Carbon Coal Co., 127 Kan. 34, 272 Pac. 155; Jordan v. Austin Securities Co., 142 Kan. 631 51 P. 2d 38; and Jelf v. Cottonwood Falls Gas Co., 162 Kan. 713, 178 P. 2d 992. It is unnecessary to review the facts in the cited cases and distinguish them from the facts found by the jury in the present case. Consideration has been given to the cases cited in behalf of the plaintiff but the court is of the opinion that the present case presents a clear example in which our statutory provision applies. G. S. 1935, 60-2918, reads in part, as follows:
“. . . When the special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court may give judgment accordingly.”
As before stated, the defendants’ answer pleaded as a defense that the driver of the defendants’ vehicle was placed in a position
The judgment of the district court is affirmed.