Rolph v. City of Winfield

506 P.2d 1132, 211 Kan. 617

Opinion

Per Curiam:

This is an appeal in a damage action by the defendants from a verdict and judgment against them for $2,000. Defendant Waldroupe was the driver of the city owned trash truck involved in a collision with the plaintiff’s vehicle at an uncontrolled city street intersection.

The issues of negligence of the defendant truck driver and of the contributory negligence of the plaintiff were submitted to the court. On this appeal the only question presented is whether the evidence established contributory negligence as a matter of law.

No new questions of law are involved and the dispute turns on the evidence. We have reviewed the evidence as reflected by the record. There was evidence that plaintiff reached the intersection well ahead of the truck and had the right of way. Both drivers testified as to what they expected the other to do. But the plaintiff’s response to the situation was the more reasonable — sufficiently so to indicate that reasonable minds might differ in appraising his conduct and to entitle him to have the trier of facts decide the issue of his contributory negligence. Also there was sufficient evidence of negligence by the defendant truck driver to make this an issue for the trier of facts. The court resolved both issues in favor of the plaintiff. We find no error and the judgment is accordingly affirmed.