Hamilton v. Ferguson
Hamilton v. Ferguson
Opinion of the Court
The opinion of the court was delivered by
This was an action to recover damages for personal injuries sustained by plaintiff (appellant) while riding as a passenger in a pick-up truck involved in a three-car collision on a four-lane highway. From an order of the trial court sustaining defendants’ (appellees’) separate demurrers to plaintiff’s evidence on the ground it failed to show any negligence on the part of either defendant, she appeals to this court.
Inasmuch as the only question for this court’s determination is whether plaintiff’s evidence was sufficient to make out a prima facie case of negligence against defendants or either of them, it will not be necessary to narrate the pleadings.
All parties are in accord with the elementary rule of law that the, trial court in ruling upon a demurrer to plaintiff’s evidence must examine the testimony in its most favorable light, giving it the benefit of all inferences, that it shall consider plaintiff’s evi
Plaintiff’s evidence in support of the allegations contained in the petition are briefly summarized herein.
The map or' drawing admitted in evidence discloses that U. S. Highway 81 running north from Wichita to Newton is a four-lane trafficway. The northbound lanes are concrete, twenty-four feet in width; the southbound, blacktop, twenty-two feet in width. There is a four-foot safety strip or divider, planted to grass, separating the north and southbound trafficways.
On September 19, 1954, plaintiff and a Mr. Aten went to Highway 81 Drive-In theater north of Wichita in a Ford pick-up truck. About 11:00 p. m., when the show was over, they left the theater with the intention of returning to Wichita. Mr. Aten was driving and plaintiff was sitting beside him. Aten, being unfamiliar with the locality, inadvertently turned north away from the city. Plaintiff remarked that he was driving in the wrong direction; Aten then pulled over in the passing lane for northbound traffic and began looking for a place to turn around. He put his arm out, signaling for a left turn. After he had driven some distance he slowed down. The automobile being driven by defendant Zuercher had been following Aten’s truck some distance. .As Aten was slowing down he first looked and saw defendant Ferguson’s automobile, about one-half mile to the north, traveling seventy miles an hour in the southbound lane next to the safety strip. Aten put his foot on the clutch and continued with his signal for a left turn, slowing his truck to a speed under ten miles an hour when he found a
Plaintiff’s petition, after alleging the facts, charged both defendants Zuercher and Ferguson with failing to keep a proper lookout for other vehicles, with traveling on the highway and failing to keep their respective cars under control; and charged defendant Zuercher with failing to stop or turn aside his vehicle in such a manner as to avoid striking the truck in which plaintiff was riding and in following the truck too closely in violation of G. S. 1955 Supp., 8-543. The petition further charged defendant Ferguson with operating his automobile at an excessive rate of speed, with failing to turn aside and thus avoid colliding with the truck, with failing to have adequate brakes and not applying them, and with failing to decrease his speed prior to the collision.
Viewing the evidence in harmony with the mentioned legal principles of law as to defendant Zuercher, we conclude that the evidence tended to sustain the view and the jury might reasonably infer that, considering traffic conditions at the time and place, defendant Zuercher failed to keep a proper lookout or to have his car under control so that he was able to turn it aside and avoid striking the truck in which plaintiff was riding, and that he followed too closely behind such vehicle.
As to the defendant Ferguson, the record does not disclose the location of the Ferguson automobile at the time Aten’s truck was driven onto the safety zone or its position at the time the Zuercher car struck the truck or at the time the truck was knocked into Ferguson’s lane of traffic. A careful review of the record fails to disclose any evidence that the defendant Ferguson had time to do anything to avoid the collision.
The case should have been submitted to the jury with reference to defendant Zuercher. It follows that the judgment of the trial
It is so ordered.
Dissenting Opinion
(dissenting in part): I dissent from that part of the syllabus and the corresponding portion of the opinion which hold that the trial court did not err in sustaining the separate demurrer of the defendant Troy Ferguson for the reason that there was evidence of speed on the part of the Ferguson car and the question as to that speed constituting negligence and whether that negligence was a proximate cause of the accident were questions for the determination of the jury.
Reference
- Full Case Name
- Ruby Hamilton, Appellant, v. Troy Ferguson and William J. Zuercher, Appellees
- Cited By
- 6 cases
- Status
- Published