Haga v. Moss, Administrator , 181 Kan. 171 ( 1957 )

The opinion of the court was delivered by

Hall, J.:

This was an action to recover damages for negligence in the operation of an automobile. The trial court sustained a demurrer to the evidence and the plaintiff appeals.

No important issue is raised as to the pleadings.

This action was filed in the probate court by a petition of demand against decedent’s estate with appropriate request that the matter be transferred and tried in the district court pursuant to G. S. 1958 Supp., 59-2402a. The answer is a written defense to the allowances of the claim in demand against the estate.

In summary the petition alleged the plaintiff was proceeding west on a county road north of Eureka, Kansas. Loose gravel was piled parallel to the north shoulder of the road forming a ridge 4 to 5 feet wide and U2 to 2 feet high. The weather was clear. While the petitioner was proceeding westerly along the road and occupying the north half, or right hand, of the roadway the automobile operated by the decedent approached from the west proceeding east. The decedent’s automobile suddenly turned to the left, or north, and crossed the center line. The accident resulted. The petition also alleges the decedent was 79 years old and suffered infirmities and disabilities.

The written defenses denied generally and specifically allegations of the petitioner and set up the contributory negligence of petitioner.

Upon these issues joined, the matter came on for trial to a jury. The plaintiff introduced his evidence and rested. The defendant demurred to the evidence and, after consideration of argument on the issues raised by the demurrer, the court sustained the demurrer, discharged the jury and disallowed plaintiff’s claim against the estate of defendant with costs to the plaintiff. After overruling of post trial motions, plaintiff takes this appeal.

Plaintiff and appellant makes five specifications of error but urges only a consideration of the demurrer to the evidence.

Following the well established rule of this court, a consideration of such demurrer requires a review of the evidence to determine whether or not there was sufficient evidence to support the cause of action of the petitioner.

An examination of the plaintiff’s evidence shows:

There were no eye witnesses to the accident other than the petitioner.

In support of the petition plaintiff introduced the testimony of Mr. Edward E. Arnold. Mr. Arnold testified that he worked on an oil lease near the scene of the accident and drove the road where the accident occurred twice a day five days a week. On the day of the accident he was driving the road and came up behind decedent’s car. He said, “There were two people in this automobile and I drove up behind them. They were going down the road and on the left side of the road part of the time and part of the time they would be on the right side. I didn’t know what side he was going to drive on. I judge they were driving around 20 miles an hour. . . .” He attempted to pass decedent' but decedent did not respond to his horn.

“Q. Did you honk it just once?

“A. No, continuously.

“I started to honk as soon as I started down the big hill. That was before I got to the intersection. After I got to the intersection I kept following this car, I wanted to get by and he never did get over.”

Arnold went on to say that he could observe perfectly as he had perfect vision. As he stalled around decedent’s car, “the car was three feet over on the left side of the black center line and he had to slow his car down and put it in second gear, straddling clear over the gravel bar, the wheels being clear on the left side of the road and possibly up the gravel bar, the wind row, to get around Armstrong.”

Arnold further testified that he could see several cars coming from the east, one of which was the Haga car.

“As I went around this car (decedent’s), this ’49 black Chevrolet, I seen two elderly people, one a lady and one a man. The man was driving, I seen a cane between the man and the lady. . . .”

A Mr. John Runyan testified next for plaintiff. He was also an oil worker on his way home. He testified that he met the Armstrong car.

“Q. After you passed, or after you got by the first automobile you met on this route which was west of the driveway, did you then meet another car approaching in an easterly direction while you were going west?

“A. Yes.

“He was over too close to our side of the road and we had to pull up in tire edge of the gravel to get around him there. It was two-tenths of a mile west of the Groom’s drive-way where we got by the second automobile.

“The Court: Which car was it you met when you were two-tenths of a mile west of the Groom driveway?

“A. Well, as near as I know, it was the Armstrong car. It was the second one we passed.”

Mr. Runyan was followed by a Mr. A1 Baumgardner and a Mr. Merle Braymer both of whom were oil field workers and testified that they were traveling over the road at the approximate time of the accident and as to the condition of the road. Mr. Baumgardner testified that he too met a car which “was driving pretty much on his side of the road and that he pulled over into the gravel ridge a foot or more”.

Mr. Braymer testified that Mr. Haga passed him and at that time Mr. Haga’s speed did not seem unusual.

Mr. Charles B. Williams, Highway Patrolman, then testified that he arrived at the scene at 5:26 p. m. He said:

“The vehicles had not been moved. . . . The traveled portion was exactly 20 feet. The center of the traveled portion at that time was exactly 10 feet. . . . The vehicles were 9 feet apart. 7 feet 10 inches from the edge of the gravel winrow to the left rear wheel of the Armstrong vehicle. There were no skidmarks behind the Armstrong vehicle when I arrived. Skid marks behind the Haga vehicle were 30 feet. The left skidmarks of the Haga vehicle were 10 feet from the south edge of the gravel. The rear of the Haga vehicle swung very sharply to the north and the rear wheels struck the gravel winrow and it stopped. The entire front of both vehicles were damaged by the impact but the impact was on just about four-fifths of both automobiles. Of course, they pulled left to right.

“Q. Was there anything at all from your investigation on that road or anything would prevent, as far as yoü could see the Armstrongs using the south half of the traveled portion of the road.

“A. No, it was clear.”

The counter abstract includes the following testimony of Trooper Williams:

. . the road was twenty-six feet wide and along the north side there was a gravel windrow which reduced the travel portion to twenty feet; the Armstrongs were driving a 1949 Ohevrolet car and Haga was driving a 1953 Chevrolet car, and that the width of said cars was approximately six feet; ‘Exhibits Five and Six’ are scale models of the Armstrong and Haga cars, the Armstrong model being marked ‘A’ and the Haga car being marked ‘H’; at the request of plaintiff’s attorneys the highway patrolman drew an outline of the Haga car and the Armstrong car on plaintiff’s ‘Exhibit Two’, which represented the position of the vehicles in the road immediately following the collision; after the accident the vehicles were nine feet apart; the left rear wheel of the Armstrong car was seven feet ten inches from the edge of the gravel windrow on the north side of the highway; the right rear wheel of the Haga vehicle was in the windrow; there were skid marks behind the Haga vehicle for thirty feet which ran parallel with the road, the south skid mark being ten feet south of the south edge of the windrow; there were no skid marks by the Armstrong vehicle; at the time of the impact the rear of the Haga vehicle swung sharply to the north and stopped; and the Armstrong car was knocked back west and slightly south for a distance of nine feet;

“The entire front of both vehicles was damaged, but the impact was just on the left four-fifths of the front of both automobiles, which would leave the right fender escaping the initial impact.

“Q. On this print, does it show the true center line of the highway?

“A. You mean the black line of the right of way, yes.

“Q. And that center line shows how much of the surface of the road was south and how much of the surface of the road was north?

“A. That is correct.

“Q. How much does it show each way?

“A. In my opinion, it would be about thirteen feet. I don’t know what it shows there. Twenty-six feet is the width.

“Q. So actually from the true penter line there is thirteen feet to the north and thirteen feet to the south.

“A. That is correct.

“Q. On the north side, thirteen feet, which is the right hand side of the road, there is this windrow of gravel you testified to?

“A. Yes. '

“Q. And that windrow of gravel, including what is north of the windrow of gravel, it takes up approximately six feet, is that right?

“A. Yes.

“Q. That leaves a balance of seven feet between the true center line of the road and the south edge of the gravel?

“A. That is right.

“Q. How wide is a car?

“A. Approximately six feet.

“Q. So there was actually room between the true center line of the road and the south edge of the gravel for a car to drive?

“A. Yes.

“Q. Without extending or using any of the south portion of the true highway?

“A. That is correct.

“Q. Where the cars came together, if you can see your plat, these skid marks you showed on the map as being the skid marks of the Haga car, how far is the south skid mark south of tire true center line of the road?

“A. That would be three feet.

“Q. Three feet south of the true center line?

“A. Yes.”

Plaintiff then called a Mr. Ernest Grooms who testified concerning Mr. Armstrong’s infirmaties and disabilities. He testified:

“. . . I had ridden some with Mr. Armstrong for some years prior to January 12, 1954. Mr. Armstrong used a cane to walk with. He walked a little lame. It was his right leg. I observed the manner Mr. Armstrong applied the brakes on Iris car during the times I had ridden with him. I believe if I remember right, he took his foot off the foot feed and put it on the brake. Mr. Armstrong had used his cane for a couple of years, if I am not mistaken. The last time I saw him I think maybe when he walked he was using a cane. He limped some then, too. His condition was about the same as it was the last time I rode with him. His condition stayed about constant.”

The court sustained objection to other testimony of Mr. Grooms.

A Dr. Henry O. Marsh then testified in behalf of plaintiff’s injuries. Plaintiff’s final witness was Mr. Kenneth Razak, Dean of the School of Engineering, University of Wichita, who in answer to a hypothetical question reconstructed the scene of the accident and testified as follows:

“Now, assuming those facts which I-' have given you before in order to work on this problem, assuming those facts, is there anything you can compute in the way of deceleration forces or angle of impact of tire vehicles?

“A. I have taken these photographs you have furnished me and attempted to reconstruct the actions of the automobiles at, during and immediately following the impact and I have a diagram together with some scale cards which I would like to use, whatever help it will be in explaining to the jury.

“Q. Is it possible from the facts given to determine anything regarding reaZtive speed of automobiles at the time of impact?

“A. Yes.

“Q. Can you tell us how you do that and what conclusion you arrive at?

“A. Knowing the fact that the car of Armstrong slid nine feet, as I believe that is in the record, and came to rest at this point; and knowing the amount of function (sic) between the wheels and roadway, I can compute the initial velocity of the Armstrong car at the time it left, or shall we say separated from the Haga car.

“Q. Would you give us your opinion and tell us a little bit how you arrive at it?

“A. My computation indicates that the Armstrong car separated from the Haga car while traveling at about nine and a half miles an hour. In other words, it would have slid nine feet if it had an initial velocity of about nine and a half miles per hour.

“That means the Armstrong car was going 9.5 miles per hour in this direction when it separated from the Haga car after the collision.

“The maximum difference in velocity between the Armstrong car and the Haga car initially would have been twice the speed of the Armstrong car backward at the time it separated or two times nine and one-half or 19 miles per hour.

“I computed at the time of the impact the left rear wheel of the Armstrong car would have been approximately three and a half feet from the south edge of the gravel ridge.

“My reconstruction of the accident shows the Armstrong car must have been turning to the right and had already turned to a small angle to the right. Therefore, at some time previous to the accident it must have been further to the left side of the road because it had already turned to the right.”

Other pertinent testimony in the counter abstract is as follows:

“12. The Armstrong car was traveling east at the rate of ten to fifteen miles per hour and was crowding the center of the road.

“14. In meeting and passing the Armstrong car, Bumgardner crowded the edge of the gravel but did not have any difficulty in passing; and at said time the Armstrong car was approximately eighteen inches south of the south edge of the Bumgardner car.

“15. The Haga car met the Armstrong car headon ninety-six feet west of the Grooms’ driveway.

“16. Bumgardner was driving approximately forty to forty-five miles per hour.

“17. The road at the place of the accident was twenty-six feet wide; the gravel ridge was four and one-half to six feet wide and the north half of the road after deducting the six feet maximum measurement for the travel ridge was seven feet wide.

“18. Haga’s car was a Chevrolet approximately six feet wide.

“19. There was ample room on the north half of the highway for Haga to drive his car without using any of the south half of said gravel road.

“20. At the time of the accident the skid marks of the Haga car were exactly ten feet from the south edge of the gravel road or a total of three feet south of the center line of said gravel road.

“21. Haga had skidded the wheels of his car for thirty feet, which skid marks were due east and west down the center of the road; and four-fifths of the left frontend of each car collided in the accident winch resulted in the death of Armstrong and his sister, and the injuries to Haga.

“22. There were no skid marks behind the Armstrong car; the impact caused the Haga car to come to an abrupt stop with its rearend swinging into the edge of the gravel ridge on the north; the Armstrong car bounced back west and a trifle south, a total of nine feet; the road was level and vision was unobstructed for approximately one-half mile at the place of the accident; and immediately after the accident highway patrolman, Trooper Williams, was called and he arrived at the scene of the accident before the vehicles had been moved.”

The court sustained defendant’s demurrer to the evidence on these grounds stated in the Journal Entry:

“1. That the evidence did not show Clark J. Armstrong to be negligent.

“2. That said evidence showed that claimant, Arley D. Haga was guilty of contributory negligence.”

In sustaining the demurrer the court said:

“It is unfortunate that this man was terribly hurt, there isn’t any question about it, but the question here is whether he contributed anything to his own injury and if by his conduct he has contributed to his own injury, then this demurrer must be sustained.

“I think from this evidence this old gentleman was wobbling around the road, like we have seen drivers do. That is probably one tragedy of an old person trying to drive an automobile; things like this are liable to happen. On the other hand, here is Mr. Haga, who was possessed of all his faculties, strong, healthy man at that time — ”

In the argument on demurrer the court said:

“If that is all the difference, you showed where he was down the road 100 yards, what difference would it make where he was on the road a 100 yares (sic) or quarter mile away if he was where he shouldn’t be, or the court thinks he was where he shouldn’t have been at the time of contact.” (Emphasis ours.)

In presenting the appeal to this court, counsel for defendant admitted the negligence of Armstrong. He said:

“In the instant case there would appear to be little question but what Armstrong was guilty of negligence. He was crowding the center line and had been partially on the wrong side of the road during all the time that it had taken him to drive from the corner west to the place of the accident. The evidence is also uncontradicted that although Armstrong was only driving 10 to 15 miles per hour he never put on his brakes prior to the time of the collision. . . .” (Emphasis ours.)

The ground rules on the consideration of the evidence under demurrer are well established by this court. In Brent v. McDonald, 180 Kan. 142, 300 P. 2d 396, the court said:

“. . . Suffice it to say that careful and extended review of the record has been made and in conformity with our long-established rule, that in reviewing a ruling upon a demurrer to the evidence, this court does not weight or compare contradictory evidence but accepts all evidence as true and gives it the benefit of all presumptions and inferences that may properly be drawn therefrom and considers only such portion thereof as is favorable to the party adducing it (Nigh v. Wondra, 167 Kan. 701, 208 P. 2d 239; Messinger v. Fulton, 173 Kan. 851, 252 P. 2d 904; Briggs v. Burk, 174 Kan. 440, 442, 257 P. 2d 164; Siegrist v. Wheeler, 175 Kan. 11, 259 P. 2d 223; Spencer v. Supernois, 176 Kan. 135, 268 P. 2d 946; Stephens v. Bacon, 176 Kan. 460, 461, 271 P. 2d 285; Maust v. Ioerger, 177 Kan. 558, 280 P. 2d 566; and other decisions to the same effect listed in West’s Kansas Digest, Appeal & Error, § 927 [5], Trial, § 156 [2] and [3]; Hatcher’s Kansas Digest [Rev. Ed.], Appeal & Error, § 488, Trial, §§ 149 to 151 inch) . . .”

Likewise in Krey v. Schmidt, 172 Kan. 319, Syl. 1 and 2, 240 P. 2d 153:

“On a demurrer to evidence courts do not consider conflicting evidence on direct and cross-examination of the same witness but only evidence favorable to the party adducing it.

“Inferences from evidence favorable to a demurring party are not indulged in his behalf. On the contrary all inferences are construed in favor of the party whose evidence is so challenged.”

In the decision the court further said on page 325:

“Although there are some rather strong inferences in the instant case which might be drawn in favor of appellants courts are not permitted to consider them on demurrer. Only inferences favorable to the party against whose evidence the demurrer is directed may be considered. (James v. Grigsby, 114 Kan. 627, 634, 220 Pac. 267; Meneley v. Montgomery, 145 Kan. 109, 110, 64 P. 2d 550.)

“Irrespective of what courts may believe about the evidence they are bound to accept it as true when challenged by demurrer. . . . No rule is better established than the one that courts will not consider or weigh conflicting evidence on direct or cross-examination of a witness. We, therefore, conclude the court did not err in overruling the demurrer to appellee’s evidence.”

To sustain a demurrer to the evidence the negligence or contributory negligence must clearly appear from the evidence introduced. Most v. Holthaus, 170 Kan. 510, 513, 227 P. 2d 144:

“That a plaintiff’s negligence, or his contributory negligence, will bar him from recovery in an action for damages sustained in an automobile casualty and that a demurrer to his evidence should be sustained where either negligence or contributory negligence clearly appears from his evidence cannot be questioned. (Dolloff v. City of Wichita, 147 Kan. 63, 75 P. 2d 221; Crowder v. Williams, 116 Kan. 241, 226 Pac. 774; Hanabery v. Erhardt, 110 Kan. 715, 205 Pac. 352; Houdashelt v. State Highway Comm., 137 Kan. 485, 21 P. 2d 343; Moler v. Cox. 158 Kan. 589, 149 P. 2d 611.) . . .” (Emphasis ours.)

In applying the ground rules to this case, we believe the court did not follow them in sustaining the demurrer to the evidence. To sustain the demurrer on the grounds that Armstrong was not negligent and that Haga was contributorily negligent required the court to weigh conflicting testimony on both direct and cross-examination of the witnesses. In fact it is difficult to determine how the court absolved Armstrong from negligence in the light of its own statement that “the old gentleman wobbled around the road.” That reasonable minds would differ on the testimony is certainly borne out by the fact that defendant’s counsel admits negligence notwithstanding the finding of the court to the contrary.

Many similar factual situations have been before this court and the court has held such questions of fact as were raised by plaintiff’s evidence should go to the jury. A leading case is Sawhill v. Casualty Reciprocal Exchange, 152 Kan. 735, 107 P. 2d 770:

“Appellants argue that their demurrer to plaintiff’s evidence should have been sustained. It is true, as argued on their behalf, the simple fact a collision occurred and someone was injured or some damage done, standing alone, will not support a verdict. There must be substantial, competent evidence of defendant’s negligence which caused the injury. (Hendren v. Snyder, 143 Kan. 34, 53 P. 2d 472; Crowe v. Moore, 144 Kan. 794, 62 P. 2d 846.) It also is true that when plaintiff rested his case no one had testified who had been an eyewitness to the collision. But the testimony of eye-witnesses is not always essential. Evidence of physical facts and circumstances may be sufficient. Here there was substantial, competent evidence that the collision occurred in the northeast quarter of the intersection, a place where plaintiff, driving north, had a right to be, and where the defendant Hubert, driving east, should not have been. There also was evidence that the right front comer of defendant’s truck struck the side of the plaintiff’s car with such force as to drive the car diagonally into the cement abutment, breaking it down. We think this evidence sufficient to have sustained a finding by the jury that the collision and resulting damages to plaintiff resulted from defendant’s negligence.”

The Sawhill case was followed in Briggs v. Burk, 174 Kan. 440, Syl. 1, 257 P. 2d 164:

“Following Sawhill v. Casualty Reciprocal Exchange, 152 Kan. 735, 107 P. 2d 770, and other decisions cited in the opinion, it is held, the physical facts and circumstances of a motor vehicle collision may be sufficiently clear to enable the triers of fact to form a judgment of how the collision occurred and who was at fault, although there was no eye witness to the collision.”

In the decision the court further said:

“Under our decisions there can be no question that negligence may be established by circumstantial evidence (See e. g., Sternhock v. Consolidated Gas Utilities Corp., 151 Kan. 81, 98 P. 2d 162, and cases cited at page 86 of the opinion; In re Estate of Modlin, supra), also that the physical facts of a motor vehicle collision may be sufficiently clear to enable the triers of fact to form a judgment of how the collision occurred and who was at fault, although there was no eye witness to the collision. . . .” (p. 450.)

Likewise the question of negligence or contributory negligence was not clearly shown in plaintiff’s evidence and should have gone to the jury. In Hogan v. Santa Fe Trail Transportation Co., 148 Kan. 720, 85 P. 2d 28, the court said:

“ ‘In testing the sufficiency of evidence as against a demurrer, the court shall consider all of plaintiff’s evidence as true, shall consider that favorable to plaintiff, together with all reasonable inferences to be drawn therefrom and disregard that unfavorable to plaintiff, and shall not weigh any part that is contradictory, nor weigh any differences between his direct and cross-examination, and, if so considered, there is any evidence which sustains the plaintiff’s case, the demurrer should be overruled.

“ ‘In determining whether a plaintiff is guilty of contributory negligence, when tested by demurrer on motion for a directed verdict, the question must be submitted to the jury if the facts are such that reasonable minds might readh different conclusions thereon.’ ”

See, also, Beecher v. Stepanian, 170 Kan. 201, 224 P. 2d 1017.

Appellee relies strongly upon DeGraw v. Kansas City & Leavenworth Transportation Co., 170 Kan. 713, 228 P. 2d 527; and Krey v. Schmidt, 172 Kan. 319, 240 P. 2d 153. Both of these cases can be distinguished because they went to the jury and the points raised by argument of appellee need not be considered here. Of course, the Krey case also stated the above ground rules on demurrer to the evidence but appellee was directing his attention to other portions of the case. Likewise Meng v. Penner, 179 Kan. 789, 298 P. 2d 246, involved a demurrer to the petition and is not persuasive. Appellee argues many other authorities which no doubt will be applicable in the defense of this matter but should not be considered on a demurrer to the evidence.

The ruling on the demurrer to the evidence is reversed, the judgment thereafter rendered is set aside, and the cause is remanded for further proceedings.

It is so ordered.