Akin v. Hill's Estate
| Decision Date | 11 May 1968 |
| Docket Number | No. 45027,45027 |
| Citation | 201 Kan. 306,440 P.2d 585 |
| Parties | Dorothy M. AKIN, Appellant, v. ESTATE of Gladys HILL, Deceased, Appellee. Linda A. AKIN, By and Through Charlie Akin as her father and Next Friend, Appellant, v. ESTATE of Gladys HILL, Deceased, Appellee. Kathleen STRAUSS, By and Through Ralph H. Strauss as her father and Next Friend, Appellant, v. ESTATE of Gladys HILL, Deceased, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Where a deceased person has lost his life in an accident it may be presumed, in the absence of evidence to the contrary, that he was at such time exercising due care for his own safety because of the love of life, which is normal to persons generally.
2. Where there is substantial positive evidence of negligence on the part of a decedent killed by accident, an instruction that he is presumed to have been exercising due care to avoid injury because of the normal instinct of self preservation, should not be submitted to the jury.
3. The record is examined in an action by passengers in a motor car, brought pursuant to the guest statute against the decedent driver of the car, and under the facts set out in the opinion it is held that the trial court committed prejudicial error in instructing the jury it was presumed that the decedent at the time of the collision was exercising due care to avoid injury.
Howard Harper, Junction City, argued the cause, and C. Vincent Jones and Wayne W. Ryan, Clay Center, Lee Hornbaker, Richard F. Waters and B. L. Abbott, Junction City, were with him on the brief, for appellants.
Evart Mills, McPherson, argued the cause, and Robert F. Galloway, Edward f. Wiegers, and Keith W. Sprouse, Marysville, and Michael Thomas Mills, McPherson were with him on the brief, for appellee.
These actions stem from a tragic headon collision between two automobiles on a highway near Randolph, Kansas, which snuffed out six lives. The three plaintiffs, Mrs. Dorothy M. Akin, Linda A. Akin and Kathleen Strauss, were riding in the rear seat of a car driven by the decedent, Gladys Hill, and have sued her estate for damages resulting from personal injuries, contending that Mrs. Hill was guilty of gross and wanton negligence within the purview of the guest statute, K.S.A. 8-122b. All three actions were consolidated for trial to a jury which returned verdicts in favor of the defendant estate. The plaintiffs have appealed, and their appeals have been consolidated in this court. In this opinion we will refer to them as plaintiffs, and to the estate of Gladys Hill as defendant.
The accident occurred in the late afternoon of June 15, 1964, as Mrs. Hill and her passengers were returning home to Blue Rapids from a state assembly of Rainbow Girls held in Wichita. Three of the group were members of the Rainbow Girls and the other two were interested adults. Mrs. Hill and one of the girls, Sue Garrett, who rode in the front seat, were killed by the impact. The other car was driven by Carroll Adams who, with members of his family, was returning to Salina from a picnic at Tuttle Creek. All of Mr. Adams' passengers, his wife, mother, father and uncle, were killed in the accident.
A brief resume of the facts is in order befoer we undertake to discuss the points raised by plaintiffs on appeal.
The accident occurred on a north-south highway, U. S. 71, at the approximate crest of a low hill, the point of impact being just east of the center of the highway. The Hill car was proceeding toward the north and the Adams car was traveling south.
At the time of the impact, Linda Akin, one of the girls riding in the back seat of the Hill car, was asleep and remembered nothing about the collision. The other two passengers in the back seat, however, were awake and both testified that on the road home Mrs. Hill drove at speeds up to 80 miles per hour and that just prior to the collision she was driving at that speed on the left-hand side or west portion of the highway while proceeding up a hill. Both of them also testified that Mrs. Hill had been patting or tapping her face shortly before the collision.
In addition, Mrs. Akins testified she had warned Mrs. Hill, when they were south of Junction City, that she had better slow down, but this warning was not heeded; that Mrs. Hill's head was down slightly as someone screamed when the Adams car appeared over the rise in front of them, and that her head jerked up and she jerked the wheel sharply to the right.
Kathleen Strauss did not remember a scream but thought Mrs. Hill had driven off the road on the left-hand side; she wasn't sure Mrs. Hill was asleep, but as she (Kathleen) saw the Adams car come over the hill, Mrs. Hill 'roused up' and turned the wheel to the right.
Mr. Adams testified that as he came up the rise he saw the Hill car, which was partly off the road on his side, and was coming right at him; he slowed down thinking the Hill car would pull back on its side of the road 'if they hadn't gone to sleep', but at the last moment he could see the car still coming at him, so he swerved to his left trying to avoid a head-on collision.
Pictures taken of the cars following the collision indicate that the front part of the Hill car struck the right-hand side of the Adams car.
The defense witnesses consisted of (1) a highway engineer who testified it would not be possible for a car going 80 miles per hour to negotiate the curve half a mile south of the accident site and also testified concerning the drop off from the crest of the rise; (2) an acquaintance of Mrs. Hill who met a car he assumed was hers somewhere south of the scene of the accident which he judged was traveling at 50 to 55 miles per hour and which flashed its lights as they passed; (3) a farmer whose home adjoined the place of the accident, who kept cattle, had two dogs and who testified there were some rabbits around, but had seen no animals on the highway where the collision occurred.
Nine points are raised on appeal, the first of which pertains to the giving of Instruction No. 26, which reads as follows:
This instruction was given to the jury after all the evidence was in, the jury had been instructed and the closing arguments had been completed. During the defendant's final summation, however, the plaintiffs had objected to certain statements made by defense counsel, but their objecttions had been overruled. When court was adjourned for the night additional instructions were requested which the court took under advisement.
The following morning the court gave four additional instructions to the jury, including No. 26, which had been requested by the defendant. The plaintiff strenuously objected to the instruction on the ground that the so-called 'love of life' presumption disappears in the face of direct evidence of negligence, an abundance of which, they contended, was shown in this case.
We believe there is merit to the plaintiff's contention. Kansas has long adhered to the rule that because of the love of life common to all people it may be presumed that a person killed in an accident was exercising due care for his own safety, in the absence of evidence to the contrary. This presumption yields, however, to direct controverting evidence.
In Brim v. Atchison, T. & S. F. Rly. Co., 136 Kan. 159, 12 P.2d 715, a parallel situation was befoer this court. In that case, the driver of a truck was killed in a railroad crossing collision with the defendant's train. There was evidence of negligence on the part of the deceased. A 'love of life' instruction was given which this court said 'had no place in this lawsuit because there was not an absence of evidence on the point.' (p. 164, 12 P.2d p. 717.) The case was reversed on appeal and our holding on the particular point involved in the present case was couched in this language:
'An instruction that, in the absence of evidence, the law would presume that the deceased used ordinary care to ascertain that he could drive across the railway track in safety because of the natural instinct of self-preservation of a normal person, should not be given where there was in fact direct evidence to the contrary.' (Sy1. P. 3.)
The Brim decision was cited with approval and followed in Blakeman v. Lofland, 173 Kan. 725, 252, P.2d 852, where the plaintiff claimed a complete loss of memory as a result of injuries sustained in an automobile accident. An instruction was requested to the effect that the plaintiff, being unable to testify, was presumed to have exercised due care for his safety. A refusal to give this instruction was upheld by this court in these words:
'* * * Assuming, without deciding, the presumption of due care applies to persons who are suffering from loss of memory just as it does in cases where death results from an accident, a trial court does not err in refusing to give such an instruction where-as here-there was direct proof to the effect the person relying thereon had failed to exercise due care. * * *' (pp. 729, 730, 252 P.2d p. 856.)
A later expression of the rule relating to the 'love of life' presumption is found in In re Estate of Roth, 191 Kan. 493, 382 P.2d 320, where the drivers of both cars were killed in an intersection collision, and no eyewitnesses observed the tragedy. Under those facts, which obviously are dissimilar from those present here, we held the trial court did not err in submitting an instruction on the presumption of due care. However, we cite this case because once again the rule was laid down:
'Under circumstances stated in the foregoing syllabus, there is a presumption that a deceased person will be presumed to have exercised due care for his own safety in...
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