Bott v. Reyburn

121 P. 366, 86 Kan. 438, 1912 Kan. LEXIS 314

• Court: Supreme Court of Kansas
• Decided: February 10, 1912
• Docket: No. 17,424
• Status: Published

Opinion

The opinion of the court was delivered by

West, J.:

The plaintiff was driving south on Fourth street in the city of Leavenworth and angled from the right side of the street to the left in order to water his horses at a public trough. Just before reaching the trough, defendant’s servant coming north in a delivery wagon drawn by a single horse drove rapidly between the trough and the plaintiff’s team, running one of the shafts into the breast of one of plaintiff’s horses, causing its death. From a judgment in favor of the plaintiff the defendant appeals, and assigns as error the refusal of the trial court to give a requested instruction and its refusal tó grant a new trial for this reason, and for the further reason that the jury returned a quotient verdict.

The jury were instructed that it was the duty of plaintiff to use ordinary care and prudence and keep to the right in attempting to pass the defendant’s servant, and if they should find that in attempting to cross the street he failed to use such care and prudence and thereby' contributed to the injury the verdict should be for the defendant; that before he could recover he must have been free from negligence himself, and that if his own negligence contributed to the loss of the horse the verdict should be for the defendant although the defendant’s servant was also guilty of negligence contributing to the collision. Also

“If the jury believe from the evidence that the plaintiff was using the wrong side of the road, the law presumes that his negligence was the proximate cause of the injury and before he can recover in this action he must not only show that he was not guilty of any negligence himself, but he must also show'by a preponderance of the evidence that the negligence of the defendant’s servant was the direct and proximate cause of the collision and injury.”

The refused instruction complained of was:

“The court instructs the jury that it is the duty of parties traveling in opposite directions, on meeting each other, to keep to the right. This rule is known as ‘the law of the road,’ and one who violates ‘the law of the road’ by driving on the wrong side of the way, assumes the risk of all such experiments, and must use greater care than if he had kept upon the right side of the road, and if a collision takes place the presumption is generally against the party upon the wrong side and especially is this true if the collision takes place in the dark.”

The instructions given by the court were certainly as strongly in favor of the defendant as he was entitled to and no error was committed in refusing to give the one requested.

An examination of the record fails to show that the jury returned a quotient verdict.

The judgment is affirmed.