The opinion of the court was delivered by
This was an action by Ruth Brittain, a widow, to recover damages for herself and minor children resulting from the alleged wrongful death of her husband in a collision of motor vehicles. The plaintiff prevailed and defendants have appealed.
The defendants were Earl Williams, owner of the semitrailer truck involved; Wichita Forwarding Company, a corporation, the lessee and operator of the truck, which was engaged as a common motor carrier under a Kansas motor permit; Ed Moran, driver of the truck; and The National Mutual Casualty Company, the insurance carrier.
The death occurred as the result of a collision when H.E. Brittain drove his 1941 Chevrolet coach into the rear end of the truck which was alleged to have been unlawfully parked facing south on the west side of highways U.S. 59 and U.S. 50 south, at a point approximately five miles north of the city of Ottawa, without lights thereon or flares and other warning signals required by law.
The deceased was approximately fifty-five years of age and in good health. His average earnings were approximately $300 per month. The jury returned a general verdict for plaintiff and against the defendants in the sum of $3,500 and answered special questions. Appellants assert the trial court erred in overruling (1) their demurrer to appellee's evidence; (2) their motion for a directed verdict; (3) their motion to set aside certain findings of the jury on the ground the general verdict and such findings of negligence were based purely on inference and conjecture; (4) their motion for judgment on the ground the evidence showed deceased was guilty of negligence which caused the accident; and (5) in overruling their motion non obstante veredicto.
Although there was one disinterested eyewitness to the accident within seventy-five feet appellee did not subpoena him. He testified on behalf of appellants. The deceased and the driver of the truck were alone in their respective vehicles. The accident occurred between 9:30 and 9:45 at night. The night was clear. Appellee does not contend there was evidence of any vehicle approaching
In the view we take of this appeal we find it necessary to treat only appellants' last contention. The specific allegations of the truck driver's negligence were:
In answer to special questions the jury found:
The accident occurred March 28, 1947. The pertinent statute at that time (since amended in some particulars by chapter 106, laws 1949) was G.S. 1947 Supp. 8-5,108. Insofar as material here it provided:
This statute was interpreted in Rasing v. Healzer, 157 Kan. 516, 142 P.2d 832. We there said:
The burden, of course, rested on appellee to establish the alleged negligence that the truck was not lighted at the time of the accident. For the purpose of obtaining a ruling on the motion non obstante, which we are presently considering, the findings of the jury are conceded to be supported by the evidence. (Eldredge v. Sargent, 150 Kan. 824, 829, 96 P.2d 870; Rasing v. Healzer, supra.) For present purposes we must, therefore, consider the findings as they stand.
Appellants assert the rule to be that answer No. 6 does not establish the negligence charge that the truck was not lighted at the time of the accident. They insist the answer, "Doubtful," must be construed against the party upon whom the burden rested to show the truck was not lighted. The contention is good. (Schaefer v. Interurban Railway Co., 104 Kan. 394, 400, 179 Pac. 323; Steele v. Woodmen of the World, 115 Kan. 159, 222 Pac. 76.) In the Steele case it was said:
The answer to question No. 6 must be interpreted as "Yes." It follows the specific charge of negligence that the truck was not lighted was not established. As previously indicated in the Rasing
Answers to questions Nos. 1 and 2 are general in character. They are refuted by the specific and detailed finding No. 6. General findings must yield to detailed findings on the same subject. (Eldredge v. Sargent, supra, p. 833, and cases there cited.)
Counsel for appellee argue strenuously a deceased is favored with the presumption of having exercised reasonable care for his own safety. We need not discuss that rule here. It could become material only on the question of negligence of the deceased. The first bar to appellee's recovery is her failure to prove the alleged negligence of appellants. Until she has established the alleged negligence of the appellants lack of negligence on the part of the deceased, assuming it be a fact, is immaterial.
The judgment is reversed with directions to enter judgment for appellants.