Numerous cases from this and other jurisdictions are cited by the parties in support of their respective views. It would add little, if anything, to the body of our law to review them all and we shall not do so. Appellant relies primarily on our decisions in Lawrence v. Kansas Power Light Co., 167 Kan. 45, 204 P.2d 752; Thompson v. Barnette, 170 Kan. 384, 227 P.2d 120; Fry v. Cadle, 171 Kan. 14, 229 P.2d 724; and Cain v. Steely, 173 Kan. 866, 252 P.2d 909. Whatever one's views may be concerning the correctness of the decisions in some of those cases it is readily apparent they cannot be controlling in the instant case. There are highly important facts which plainly differentiate them from the instant one.
Cosby v. Doskocil, supra; Cain v. Steely, supra. In Lawrence v. Kansas Power Light Co., 167 Kan. 45, 204 P.2d 752, 755, the court said: If the Supreme Court of Kansas, in the Orr case, intended to hold that under all circumstances a motorist who drives in front of another car at the intersection of open country roads is guilty of contributory negligence, then there has been a decided trend away from the decision.
The evidence showed that she was familiar with and had driven Tenth Street, but she was unfamiliar with the Poor Farm Road, and where it intersected Tenth Street. Moreover, there was evidence of the blinding headlights of the defendant's automobile and of obstructions to the stop sign by a large mailbox. The legal questions in this case were aptly stated by Mr. Chief Justice Harvey in Lawrence v. Kansas Power Light Co., 167 Kan. 45, 204 P.2d 752, where it was said: "The legal questions here involved are so well settled in our law that they need not be labored.
It is only when conduct can be said as a matter of law to have fallen below the standard of a reasonably prudent person that the question of contributory negligence may be taken from the jury and determined by the court. ( Shehi v. Southwest Rentals, Inc., 199 Kan. 265, 428 P.2d 838; Bingham v. Hillcrest Bowl, Inc., 199 Kan. 40, 427 P.2d 591; Lawrence v. Kansas Power Light Co., 167 Kan. 45, 204 P.2d 752; 3 Barron and Holtzoff, Federal Practice and Procedure, Summary Judgments, Β§ 1232.1.) Usually, questions as to negligence or contributory negligence are not subject to determination on summary judgment because the evidence and inferences, which might be implied therefrom, construed in the most favorable light against the movant, as required, leave in question a genuine issue as to some material fact.
The instances are relatively rare when the facts are such that the court should say that as a matter of law the negligence alleged has or has not been established. ( Lawrence v. Kansas Power Light Co., 167 Kan. 45, 49, 204 P.2d 752.)." (l.c. 549.)
The instances are relatively rare when the facts are such that the court should say that as a matter of law the negligence alleged has or has not been established. ( Lawrence v. Kansas Power Light Co., 167 Kan. 45, 49, 204 P.2d 752.) The right of every individual citizen to a trial by jury is of ancient origin, and as now practiced is the result of a long process of development.
Before such a holding is made, the evidence should be so clear that reasonable minds, considering it, could have but one opinion, that is, that the defendant was negligent, or that the plaintiff was contributorily negligent. ( Lawrence v. Kansas Power Light Co., 167 Kan. 45, 204 P.2d 752.) I am not disposed to labor the numerous negligence cases cited by the parties nor repeat the well-established rule of law applicable to a defendant's demurrer to a plaintiff's evidence involving negligence, proximate cause, and rules of the road.
We are of the opinion that reasonable minds might reach different conclusions on the question, and that it was properly submitted to the jury. ( Lawrence v. Kansas Power Light Co., 167 Kan. 45, 49, 204 P.2d 752.) The evidence was undisputed that the plaintiff looked to the south and could see part of the county road 40 feet to the south of the intersection and no cars were in sight.
(See Winfough v. Tri-State Insurance Co., 179 Kan. 525 [Syl. ΒΆ 3], 297 P.2d 159; Albin v. Munsell, 189 Kan. 304, 311, 369 P.2d 323.) In any event, after serious consideration of all arguments advanced by the parties, we are convinced the evidence in this case presents a situation where what was said by Mr. Chief Justice Harvey in Lawrence v. Kansas Power Light Co., 167 Kan. 45, 204 P.2d 752, is clearly applicable and, when applied, must be regarded as decisive of the claim now under consideration. The pertinent portion of that opinion reads:
Before the court should make such a holding, the evidence should be so clear that reasonable minds considering it, could have but one opinion, namely, that the party was negligent. ( Lawrence v. Kansas Power Light Co., 167 Kan. 45, 49, 204 P.2d 752.) The issue was such that reasonable minds might differ, and the question was properly submitted to the triers of the fact.