Sasso v. Carlson

150 P. 576, 96 Kan. 153, 1915 Kan. LEXIS 336

• Court: Supreme Court of Kansas
• Decided: July 10, 1915
• Docket: No. 19,461
• Status: Published

Opinion

The opinion of the court was delivered by

Burch, J.:

The action was one for damages for injuries sustained by a pedestrian crossing a street, occasioned by being run down by an automobile. The plaintiff recovered and the defendant appeals.

The evidence was sufficient to warrant the submission of the cause to the jury and to sustain the special findings and the general verdict. Besides the statements of witnesses characterizing the speed of the automobile, the relative movements of the plaintiff and of the automobile were so described as to indicate excessive speed. The jury were particularly impressed with the fact that the automobile driver was going so fast he could not control the car.

The prudence of the conduct of the plaintiff was clearly a question for the jury, and the answer to special question number seven accords with her testimony.

The portion of instruction number thirteen which was criticized summarizes in a few words the doctrine stated in Railroad Co. v. Gallagher, 68 Kan. 424, 428, 75 Pac. 429. The language of the instruction was, “if she had good reason.to believe” — a matter for the jury to determine under all the circumstances. The next sentence of the instruction stated the duty to use due care, as instruction number eleven had done at length. Finding number seven is to be read in the light of the instructions and in harmony with the general verdict.

The evidence discloses lack of diligence such as the law required of the defendant to secure the attendance or evidence of his absent witness.

The foregoing covers the material assignments of error, and the judgment is affirmed.