Orr v. Hensy

The opinion of the court was delivered by Smith, J.: This was an action for damages alleged to have been sustained by plaintiff when the automobile in which she was riding with her husband collided with one driven by the defendant. The collision occurred at an intersection of two roads. The car in which plaintiff was riding was being driven from the east toward the west. The road was gravel, about sixty feet wide, and had space for two lanes of traffic. The defendant was driving from the north toward the south. This road was of dirt north of the intersection, about forty feet wide, with only one lane for traffic. The traveled portion of this highway was about fifteen feet wide. About four hundred feet north of the intersection there was a knoll so that the road upon which defendant was driving sloped to the south of this knoll to the intersection. A person in a car approaching the intersection from the east could not see a car approaching from the north beyond this knoll. There was a hedge fence along the south side of the east-and-west road east of the intersection and along the east side of the north-and-south road east of the intersection. There were no obstructions along the north side of the east-and-west road. There was a culvert across the east-and-west road about six feet south of the north line of the intersection. The collision occurred about six o’clock in thé evening on May 17. The car driven by de [615] fendant from the north struck the car in which plaintiff was riding on the right side near the front door. There is no dispute about the facts that have just been stated. The jury returned a general verdict in favor of the plaintiff and answered special questions. Judgment was rendered for the plaintiff pursuant to the verdict. Hence this appeal. Defendant argues first that the trial court erred in overruling his demurrer to the evidence of plaintiff and his motion for a directed verdict against plaintiff in favor of defendant. These two arguments may be considered together. (See Hayes v. Reid, 145 Kan. 51, 64 P. 2d 19.) The argument is that the evidence of plaintiff established that she was guilty of contributory negligence as a matter of law so as to bar her right to recover. In considering a demurrer to the evidence it must be viewed in the light most favorable to the plaintiff and all reasonable inferences must be drawn in her favor. See McDaniel v. Myers, ante, p. 21, 131 P. 2d 650; Robinson v. Short, 148 Kan. 134, 79 P. 2d 903; and Dassler’s Code of Civil Procedure, 2d ed., pp. 1241, 1242. With the above rule in view we shall examine the testimony of the plaintiff. She was riding with her husband. Their car was in good mechanical condition. As they approached the intersection and were about seventy-five or eighty feet from it she looked north. There was nothing to obstruct her vision to the north and she did not see or hear any vehicle approaching from the north. She testified that a car could be seen as far as the knoll. She further testified that she looked west and when the car was about twenty or twenty-five feet from the center of the intersection, or at its east boundary, she looked south and there were no vehicles coming from that direction, and that the hedge fence .on the south of the road made it necessary for her to look to the south just before they drove into the north-and-south road. The husband of plaintiff testified to about the same effect, and in addition that he was probably a little over the center line of the intersection when he looked west; that there was a flash and he saw another car coming toward him from the north, probably twenty or thirty feet from him. After he saw the car he did not have time to do anything. Defendant told him at the hospital that he was going forty miles an hour. In his judgment he himself was going about twenty miles an hour as he approached the intersection. [616] Defendant points out that this evidence established that plaintiff looked to the north for the last time when the car in which she was riding was about seventy-five feet from the intersection and drove into the intersection without again looking to the north. He argues that such conduct constituted a want of due care on her part and since such was established by her own evidence, the demurrer of defendant to her evidence should have been sustained. Since the plaintiff says she looked to the north when seventy-five feet away from the intersection and saw no car approaching from, the north for a distance of four hundred feet, we must assume for the purpose of this discussion that there was no car there. An ordinarily reasonable person would have a right to assume that no car would reach the intersection from a point four hundred feet north of it while a car in which she was riding was going seventy-five feet. It was not contributory negligence on the part of plaintiff as a matter of law to’ assume that no car would enter the intersection from the north, since when she was seventy-five feet away she had looked and there was no car nearer than four hundred feet. We have taken further note of the fact that the road which plaintiff was crossing was a narrow road with only one track for traffic and plaintiff’s car had reached the center of it before it was struck. The next argument of the defendant is that the court erred in not sustaining his motion for judgment on special findings notwithstanding a general verdict. We have examined these answers. They follow pretty closely the testimony that was given by the plaintiff and her husband and the other witnesses. Hence, what we have said as to the correctness of the order of the trial court in overruling thé demurrer to the evidence applies with equal force to the argument that ,the motion for judgment notwithstanding the general verdict should have been sustained. The judgment of the lower court is affirmed.