Crowley v. Ottken

• Decision Date: 06 May 1978
• Docket Number: No. 48587,48587
• Parties: Theresa L. Yocum CROWLEY, Appellant, v. Roylenne K. OTTKEN, Appellee.
• Court: Kansas Supreme Court

Page 689

578 P.2d 689

224 Kan. 27

Theresa L. Yocum CROWLEY, Appellant, v. Roylenne K. OTTKEN, Appellee.

No. 48587.

Supreme Court of Kansas.

May 6, 1978.

Syllabus by the Court

In an action for damages arising out of a collision between a motorcycle and an automobile, the record is examined and it is held: The district court did not commit prejudicial error (1) in submitting to the jury as an issue of fact the question of the passenger's contributory negligence or the negligence of the driver of the automobile, (2) in giving an instruction on the doctrine of sudden emergency, or (3) in refusing to permit a juror to impeach his verdict or to grant a mistrial.

David L. McLane, of Gendusa, McCurdy, & McLane, Pittsburg, argued the cause, and was on the brief for appellant.

Charles L. Davis Jr., of Gray, Freidberg, Davis, & Unrein, Topeka, argued the cause, and J. Franklin Hummer, Topeka, was with him on the brief for appellee.

PRAGER, Justice:

This is an action to recover damages for personal injuries arising from a collision between a motorcycle and an automobile at an intersection near Lake Shawnee in Shawnee county. The plaintiff, Theresa L. Crowley, was a passenger on a motorcycle driven by Charles Brockman. The defendant, Roylenne K. Ottken, was the driver of the automobile. The case was tried to a jury which brought in a general verdict in favor of the defendant. The plaintiff Crowley has appealed to this court claiming trial errors.

The factual circumstances which brought about the collision were not greatly in dispute. The accident occurred on a lake entrance road which begins at a T-intersection with Croco road and runs westerly toward Lake Shawnee. Approximately 500 feet west of Croco road, the lake entrance road forms a "Y" shaped intersection with two roads which run to the right and left. The posted speed limit in the area is 25 miles per hour. The intersection presented a very dangerous situation because there were no traffic control devices to warn or direct operators of vehicles as they approached the intersection.

Just prior to the collision, the Brockman motorcycle was following another motorcycle driven by Frank Zeckmeister heading in a westerly direction toward the "Y" intersection. At the same time, the defendant was driving her automobile at a slow speed approaching the intersection from a northwesterly direction. The Zeckmeister motorcycle reached the intersection ahead of the Brockman vehicle and was able to clear the intersection on the road extending to the southwest. The speed of the Brockman motorcycle, on which the plaintiff was riding, was estimated by some witnesses at 35-to-45 miles per hour. Witnesses testified that after the Brockman motorcycle turned onto the entrance road off Croco road, it accelerated substantially prior to the moment of impact. Defendant Ottken's version of the accident was that, as she approached the intersection, she saw motorcycles approaching from the east. After the Zeckmeister motorcycle crossed in front of her, she entered the intersection and then noticed the Brockman motorcycle swerving. She stopped in the intersection, leaving the motorcycle enough room to pass on either side. The motorcycle was unable to avoid the stopped automobile and the collision occurred.

The first point raised on appeal is that the trial court erred in submitting the issue of the plaintiff's contributory negligence to the jury. The instructions on the subject of contributory negligence were in the language of PIK Civil 4.01 and 8.91. The plaintiff has no objection to these instructions as a correct statement of the law. She maintains that they should not have been given at all. The issue is whether reasonable minds could differ as to the negligence of the plaintiff as a passenger on the motorcycle.

Under all the facts and circumstances, we have concluded that the contributory negligence of the plaintiff was an issue of fact properly submitted to the jury. There was testimony to the effect that the plaintiff observed the defendant's vehicle as it approached the intersection from the right. The posted speed limit was 25 miles per hour. Witnesses estimated the speed of the motorcycle to be as high as 35-to-45 miles per hour. The record does not indicate that the plaintiff warned the driver to slow down until it was too late to avoid the collision. Under all the circumstances we cannot say that the trial court erred in submitting the issue of the plaintiff's contributory negligence to the jury.

The second point on appeal is that the trial court erred in giving an instruction on sudden emergency. In Zell v. Luthy, 216 Kan. 297, 533 P.2d 1298 (1975), we stated that emergency circumstances are a proper matter for argument by counsel and that an instruction on sudden emergency is not required where negligence, burden of proof, and causation have been properly defined in the instructions. In Zell we refused to reverse the case because the trial court had given an emergency instruction as we were unable to say that the plaintiff had been prejudiced by the instruction. We have reached a similar conclusion in the case now before us. Although an instruction on sudden emergency should not have been given, it appears to us that under all the circumstances such an instruction was not prejudicial error as a matter of law in this case. We, therefore, decline to reverse the case on this point.

Points three and four have been combined in the brief. The substance of these points is that the trial court should have instructed the jury that the defendant was negligent as a matter of law. In our judgment the trial court properly submitted the issue of the defendant's negligence to the jury. From the evidence...