Zimmerman v. Kansas City Public Service Co.

286 P. 669, 130 Kan. 338, 1930 Kan. LEXIS 156

• Court: Supreme Court of Kansas
• Decided: April 5, 1930
• Docket: No. 29,018
• Status: Published

Opinions

The opinion of the court was delivered by

Marshall, J.:

Plaintiff recovered judgment for damages caused by injury sustained by her while a passenger on a street car operated by the defendant, which appeals.

The plaintiff was a passenger on a northbound street car on Thirteenth street south of Stewart avenue in Kansas City. The street car collided with a truck loaded with coal going south. Just before the collision the plaintiff had risen from her seat preparatory to getting off the street car at Stewart avenue, the next stop. The collision with the truck threw her to the floor and injured her. The evidence tended to prove that the motorman on the street car saw the truck before the collision; that the driver of the truck saw the street car before the collision; that the truck was being driven south on Thirteenth street; that part of the steering gear on the truck broke and the truck became unmanageable, and that the truck then veered to the east and ran into the street car.

Special questions were submitted to the jury and were answered as follows:

“2. What part of the North Coal Company truck collided with the northbound street car? A. Front left corner of truck.

“3. What part of the street car did the truck collide with? A. Front left.

“4. If you find for the plaintiff, of what did the negligence of the defendant consist? A. He did not properly observe the traffic and tracks ahead of him and did not apply the brakes as soon as he should have.

“6. Did the motorman have any warning that the truck was uncontrollable? A. No.

“8. How fast was the truck going at the time of the collision? A. Ten to fifteen miles per hour.

“9. How fast was the street car moving at the time of the collision? A. Seven to eight miles per hour.

“10. How far, in feet, did the truck run from the point on the west side of Thirteenth street where the steering device broke to the point where the truck struck the street car? A. Approximately 100 feet.

“11. Was the North Coal Company truck at any time prior to the collision on the northbound street-car tracks? A. Yes.

“12. How much time elapsed from the breaking of the steering device until the southbound truck ran across the southbound car rails into the street car? A. Two or three seconds.

“13. What did the driver of the truck do to stop the truck before the ■collision? A.' Nothing.

“1. Did the driver of the truck lose control thereof at some point just south of Thirteenth and Stewart? A. Yes.

“2. If you answer question 1 in the affirmative, then state whether from the time the truck driver lost control of his truck he was doing anything which should have attracted the attention of the motorman of the street car. A. No.

“4. If the motorman in charge of the street car had been looking northward, and along the tracks, could he have observed the truck approaching in a place, or in such a manner that its continued approach constituted a danger of a collision, and have stopped his street car and thus avoided a collision? A. Yes.”

The defendant argues that “the court erred in overruling the defendant’s demurrer to the evidence at the close of plaintiff’s case,” and that “the court erred in refusing to give to the jury the peremptory instruction requested by the defendant” to return a verdict in favor of the defendant. The question thus raised is presented in other forms. The jury found, and there was evidence which tended to prove, that although only two or three seconds of time elapsed between the breaking of the steering device and the collision, the street car could have been stopped in ten or twelve feet and that the street car could have been stopped in time to have avoided the collision. This evidence, together with inference that could properly be drawn from the facts concerning which there was no dispute, compelled the submission of the case to the jury for determination-. It was not error to overrule the defendant’s ^demurrer to the plaintiff’s evidence, nor to refuse to give an instruction directing a verdict in favor of the defendant.

Another proposition urged by the defendant is that “the court erred in overruling the defendant’s motion for a judgment upon the special findings of the jury non obstante veredicto.” A careful examination of the special questions and the answers thereto reveals but one that might be considered favorable to the defendant. That is the twelfth, as follows:

“12. How much time elapsed from the breaking of the steering device until the southbound truck ran across the southbound car rails into the street car? A. Two or three seconds.”

This question and answer should be read in connection with the eleventh, as follows:

“11. Was the North Coal Company truck at any time prior to the collision on the northbound street-car tracks? A. Yes.”

The answer to the eleventh question established that the truck was on the northbound street-car track before the collision. The answers to the two questions numbered four established that the street car could have been stopped in time to have avoided the collision. It must be admitted that two or three seconds is a short time in which to stop a moving street car, but the street car was moving slowly and could have been stopped, according to the evidence, almost instantly. The answers to the special questions would not. have justified a verdict in favor of the defendant.

It is argued by the defendant that “the court erred in permitting the introduction of incompetent, irrelevant, immaterial and prejudicial evidence over the objections of the defendant, which affected the substantial rights of this defendant and gave the adverse party an undue advantage.” The evidence complained of was-that which tended to show that the plaintiff had been a married woman, that she had a family, that she performed her household duties, and that she had given birth to five children, four of whom were then living. The injury which the plaintiff claimed she sustained by reason of the accident was a dislocated kidney. One of the matters urged by the defendant which it sought to establish by evidence was that the plaintiff, on account of the shape of her body, its size, and the location of-her internal organs, was predisposed to a moving kidney, which would be somewhat easily dislocated, which condition the defendant sought to prove would be aggravated by the birth of five children. But for the evidence of the defendant in endeavoring to show that the birth of the children had been a cause of the condition of the plaintiff’s kidney, a serious question might be presented by the admission of the evidence complained of, but with the admission of the evidence on behalf of the defendant, the error, if there was one, was waived and abandoned by the defendant.

Misconduct of counsel is urged as error sufficiently prejudicial to justify a reversal of the judgment. This misconduct consisted of remarks made during the examination of witnesses and in argument to the jury. From the abstract we conclude that the trial was a hotly contested one. The record discloses that counsel were not considerate of each other. The court, after an examination of those remarks as disclosed by the record furnished to this court, is of the opinion that they were not so bad as to justify reversing the judgment.

Defendant argues that plaintiff was erroneously permitted to ask leading and suggestive questions. This matter has been examined, and the court is of the opinion that it is not of sufficient merit to warrant extended discussion. While questions that were somewhat improper may have been asked, the record does not disclose that any prejudice to the defendant resulted from the manner of asking questions. ■

Matters that are herein disposed of are by the defendant presented in other forms. It is not deemed necessary to discuss them further.

No prejudicial error has been shown; the judgment is affirmed.