Orr v. Hensy

Hoch, J.

(dissenting): The reasons for my dissent will be briefly stated. The jury’s answers to special questions seem to me clearly to constitute a finding of contributory negligence on the part of the plaintiff. In my opinion the case cannot reasonably and logically be distinguished from others where similar situations were presented and where we have held that there was contributory negligence barring recovery.

Plaintiff’s husband was driving and she was sitting beside him. They were traveling west. Their car was struck at an intersection *617by defendant’s car, which was coming from the north. The jury found that there was nothing to obstruct the view to the north, and both the plaintiff and her husband had so testified. The jury found that for a quarter of a mile before they reached the intersection they could see a car coming from the north at any time after it came over a knoll which was four hundred feet north of the intersection. The jury found that the defendant was traveling at the rate of forty miles an hour from the time it came over the knoll until it reached the intersection; that the plaintiff’s car was traveling twenty miles an hour and could have been stopped within twenty to twenty-two feet. Since defendant was traveling twice as fast as the plaintiff, it follows as an inescapable fact of mathematics that plaintiff was two hundred feet east of the intersection when the defendant’s car came over the knoll and into plain view four hundred feet north of the intersection. There was no instant while plaintiff and her husband were traveling that two hundred feet, at the slow rate of twenty miles, when they could not have seen the defendant’s car if they had looked to the north. Plaintiff testified that she looked to the north when they were seventy-five or eighty feet from the intersection, but saw no car. Her husband testified that he looked when they were eighty or ninety feet from the intersection and saw no car. But the jury found there was nothing whatever to keep them from seeing it. Countless authorities might be cited to the effect that one must be charged with seeing what is plainly to be seen if he looks. (McDonald v. Yoder, 80 Kan. 25, 101 Pac. 468; Turner v. George Rushton Baking Co., 135 Kan. 484, 487, 11 P. 2d 746; Coughlin v. Layton, 104 Kan. 752, 755-757, 180 Pac. 805.) Any other rule would provide easy escape from liability. When plaintiff was ninety feet from the intersection the defendant’s car was one hundred eighty feet from the intersection, and when she was seventy-five feet away defendant was one hundred fifty feet from the intersection. During more than twice the greatest distance from the intersection at which either of them testified they looked the defendant’s car was plainly visible and continued to be plainly visible until the collision occurred. So the jury found.

We have a number of closely analogous cases which might be reviewed. I shall note only two recent ones. In Sayeg v. Kansas Electric Co., ante, p. 65, 131 P. 2d 648, plaintiff was injured in a collision at an intersection, her car being struck by a car approaching from the north. The jury found that there was nothing to *618prevent her from seeing the other car though they found “she looked but evidently did not see” it. They found, and logically so, that this constituted negligence “to some extent.” We reversed a judgment for plaintiff on the ground that contributory negligence barring recovery was shown by the jury’s answers.

The situation presented in Earhart v. Tretbar, 148 Kan. 42, 80 P. 2d 4, was practically identical with the instant one, on the issue of contributory negligence. We quote from the opinion in that case:

“Defendant’s car entered the intersection at a speed of 40 to 43 miles per hour and the plaintiff’s car entered -the intersection between 20 and 25 miles per hour; the collision occurred near the center of the intersection; passengers in plaintiff’s car had a clear vision of the road on which defendant was traveling while plaintiff’s car was 50 feet east, 100 feet east, 100 yards east and 200 yards east of the intersection; plaintiff did not, prior to reaching the intersection, see defendant’s car approaching; the driver of, or passengers in plaintiff’s car could have seen defendant’s car had they looked; plaintiff was guilty of negligence in that he did not see the approaching car which he should' have seen; the direct and proximate cause of the collision was the negligence of both defendant and plaintiff.” (p. 44.)

Why should not the usual rule be applied in this case? We are told that there is one fact or circumstance which changes the situation and absolves the plaintiff from contributory negligence. Contrary to the situation on the north, where the view was open, there was a hedge fence on the south which obstructed the view. Plaintiff and her husband testified that they looked to the south about the time they entered the intersection, which was obviously a prudent thing to do on account of the obstruction of the hedge fence prior to that time. Did the necessity of that precaution relieve them from any obligation to note whether a car was coming from the north? If they had looked they would have seen the car at any time while they were traveling, at slow speed, the two hundred feet east of the intersection. A turn of the head, a glance north within a split second would have sufficed. Nor, on an issue of contributory negligence, does the fact that they were first into the intersection excuse a failure to use ordinary care and precaution in apprehending danger and avoiding injury.

Plaintiff was' obliged to use reasonable care to avoid danger and injury, from both directions. The jury’s answers show that such care was not used as to the north from which the blow came. We say, in effect, by the decision in this case that attention to or preoccupation with a special hazard from one direction exculpates for *619negligence in failing to give regard to a hazard—perhaps less obvious in character but none the less present—from the opposite direction. That, in my opinion, is an unsound, a far-reaching and dangerous . doctrine.

Wedell, J., concurs in the foregoing dissenting opinion.