Taylor v. Johnson , 186 Kan. 561 ( 1960 )

The opinion of the court was delivered by

Jackson, J.:

Mrs. Taylor and Johnson were the drivers of two automobiles which collided at the intersection of two streets in the city of Girard. Mrs. Taylor suffered grievous and permanent injuries as a result of the collision, especially to her right leg and foot, and brought an action against Johnson for damages. Following a trial to a jury, a general verdict was returned in the sum of $18,000 in plaintiff’s favor and certain special questions were answered by the jury. The trial court upon motion of defendant set aside the general verdict and entered judgment for defendant upon the answers to the special questions. Plaintiff has appealed.

The collision involved in this appeal occurred at the intersection of Ozark and Willow streets at about 3:20 p. m. on November 11, 1957. Ozark street runs north and south and Willow goes east and west. There were no stop signs or other traffic controls at the intersection. Plaintiff approached the intersection on Willow street proceeding west, and defendant was driving north on Ozark. There seem to have been no particular obstructions to vision at the intersection.

The single question in this appeal is as to the effect of the special findings of the jury. After finding a general verdict for plaintiff, as noted above, the jury answered the special questions submitted to them by the court as follows:

"Q. No. 1. Did, plaintiff look to the south before entering the intersection?

“A. Yes.

“Q. No. 2. If you answer question No. 1 in the affirmative, how far, in feet, east of the center of the intersection was plaintiff’s car when she looked to the south?

“A. 75 to 100 feet.

“Q. No. 3. In how many feet could plaintiff have stopped her car traveling at a speed of 20 miles per hour under the circumstances existing just prior to the collision?

“A. 52 feet.

“Q. No. 4. What, if any, negligence do you find against defendant Paul R. Johnson which was the proximate cause of the collision?

“A. Excessive speed, car not under control and failure to yield right-of-way.

“Q. No. 5. Do you find the plaintiff Hazel Taylor guilty of any act of negligence which caused or contributed to the collision?

“A. Yes.”

We are informed that the jury first returned their verdict without answering special question No. 5 above. The court thereupon requested that they return to the jury room and complete the answers to the special questions. This was done with the result shown above.

Defendant in due time filed a motion for judgment notwithstanding the general verdict. Plaintiff filed a motion for new trial, but later withdrew the same and stood on a motion to set aside the answer to question No. 5. As noted above, the court sustained the defendant’s motion and overruled plaintiff’s motion.

In this appeal, plaintiff does not appear to challenge the answer to question No. 5 upon the ground that there was no evidence to support the answer. In fact, under the evidence it would seem that the jury was of the opinion that plaintiff was not keeping an adequate watch for automobiles approaching the intersection at a time when she could easily have seen the defendant and ascertain from his actions that he could not stop his car. She frankly testified that she did not see the defendant until about the time she herself entered the intersection. The answers to questions Nos. 1, 2, and 3 do not state that plaintiff saw the defendant, and the answer to No. 3 would indicate that plaintiff had ample time to avoid the accident, if she had seen defendant. Furthermore, there was nothing to prevent plaintiff from watching to the south as she came nearer than 75 feet from the intersection.

While plaintiff was on defendant’s right and therefore had the right of way, she could not drive in front of an oncoming car, and had a duty to observe the traffic approaching the intersection.

The real argument on the appeal would appear to amount to a misconstruction of what was said by this court in the cases of Scott v. Bennett, 181 Kan. 410, 312 P. 2d 224, and Ziegelasch v. Durr, 183 Kan. 233, 326 P. 2d 295. While there would appear to us to be no room for misconstruction of what was said in those cases, we shall analyze the matter briefly.

This court has long had the rule that where a jury makes specific findings as to specific facts and then gives an answer to a question calling for a general finding based upon its answers to the specific findings, the last answer is controlled by the answers to the specific facts. (See cases cited in the opinion of the Scott case.) Why is this rule sound?

This question involves the fundamental functions of the court and jury. The function of the jury is to decide disputed questions of fact and then to apply to the findings of fact the law given to them by the court. If the jury finds specific questions of fact which in and of themselves convict the plaintiff of negligence and then makes a general conclusion from those findings contrary to the clear purport thereof, the court may set aside the conclusion as controlled by the specific findings because, after finding the facts specifically, the jury has misapphed the law thereto. Attention is directed to Reynolds v. Bank, 104 Kan. 215, 178 Pac. 605, where this court briefly stated this conclusion.

We fear plaintiff has misunderstood the use of the term conclusion of law. She makes no real contention that findings Nos. 1, 2, and 3 control the answer to question No. 5, or are inconsistent therewith. Actually the answer to question No. 3 lends support to the answer to question No. 5.

Suppose in a case in which the facts are disputed and the jury is asked the one simple question: Was the plaintiff contribuíorily negligent? And, further, suppose the jury answers, “yes.” We know of no case holding that the answer constitutes a question of law or that it coffid be set aside by the court, if supported by the evidence. In Richardson v. Weare, 62 N. H. 80, we find a case identical to the hypothetical case iust supposed. The Supreme Court of New Hampshire affirmed the action of the trial court in entering judgment for the defendant.

The question has arisen as to whether the judgment entered by the trial court in this case is consistent with the very recent case of Bateman v. Crum, 186 Kan. 1, 348 P. 2d 639. The Bateman case involved an automobile collision on a state highway in which three automobiles had a part. Plaintiff was proceeding west on the highway, the Pence car was proceeding east (Pence was not a party to the action). The defendant Crum seems to have been parked off the highway on the south side headed toward the east. Plaintiff’s theory of the case was that defendant started his car toward the highway putting Pence in fear of a collision and causing her to veer over to plaintiff’s side of the road where the collision between Pence’s car and plaintiff’s car took place.

The jury found a general verdict for defendant, and then wrote in the following voluntary statement: “That even though the forward motion of the Crum car constituted a potential hazard, it is the belief of the jury that the proximate cause of the accident was Louise Pence.” The jury then proceeded to answer special questions as follows: No. 1, as to defendant’s negligence, “Yes, contributory.”

The jury in other answers absolved plaintiff of contributory negligence, and finally, in question No. 7 found the proximate cause of the accident to have been: “Louise Pence’s car in west lane.”

The above special questions and the voluntary statement of the jury raised some serious questions in the minds of several members of the court. Had the jury found that the defendant had put a “force” in motion which had contributed to the accident at the scene thereof? If so, had not the jury misconstrued the law of the case even though it found Louise Pence to have been the proximate cause of the accident? It is elementary that there can be two proximate causes. In the end, there were no dissents to the opinion of the court as written, because from the evidence it was not clear that the defendant’s car ever entered the highway, and the Pence car may have been driven to the wrong side of the highway unnecessarily. As expressed in the opinion of the court, there is a rule that the findings are to be construed, if possible, to be consistent with the general verdict and with each other.

But any question concerning the correctness of the decision in the case of Bateman v. Crum, supra, would only appear to strengthen the view that the trial judge came to the correct conclusion in the instant case. Moreover, here the jury answered affirmatively to the question of whether plaintiff was guilty of any act of negligence which caused or contributed to the collision. Obviously, the jury understood the judge to be referring to the action of the plaintiff at the scene of the accident. It is true that the word “proximate” was not used in the question, but how would any one define “proximate cause” differently than in the language of the question? “Proximate” is a word often misunderstood by laymen.

It should be pointed out also that plaintiff at no time objected to the form of question No. 5, nor to any of the other questions, and asked for no additional questions.

Although the plaintiff has everyone’s sympathy as to her grievous hurt, from what has been said, we believe that the answers to the special questions were inconsistent with the general verdict in plaintiff’s favor, and that the trial judge was fully authorized to enter judgment upon the special findings in favor of the defendant (G. S. 1949, 60-2918).

Tire judgment below must be affirmed. It is so ordered.