Bell v. Miller

186 P.2d 115, 163 Kan. 724, 1947 Kan. LEXIS 264

• Court: Supreme Court of Kansas
• Decided: November 8, 1947
• Docket: No. 36,886
• Status: Published

Opinion

The opinion of the court was delivered by

Parker, J.

This was an action to recover damages for personal injuries suffered by the plaintiff as a result of an automobile collision. The trial court sustained a demurrer to the amended petition and the appeal is from that ruling.

With one exception all issues raised by the appeal are the same as those involved in Crawford v. Miller (No. 36,885), 163 Kan. 718, 186 P. 2d 116 (this day decided), and are determined by what is said and held in the decision.

The exception to which we have referred comes from the fact appellant’s petition discloses he was sitting in the Crawford automobile, which was disabled and hacl been standing on the wrong side of the highway for a period of approximately thirty minutes, at the time of the occurrence of the collision resulting in his injuries. Appellee contends this factual statement compels the sustaining of the demurrer on the basis it convicts appellant of contributory negligence. His position on this point is not sound. Under all the facts set forth in the petition which will be found quoted at length in the opinion of Crawford v. Miller, supra, we have little difficulty in concluding that whether appellant was guilty of any negligence at all in continuing to «sit in the automobile in which he had been riding was a question of fact on which reasonable minds might reach different conclusions and therefore not determinable as a matter of law.

Based on what has just been stated and our decision in Crawford v. Miller, supra, we hold the trial court erred in sustaining appellee’s demurrer to the petition.

The judgment is reversed.