Allen v. Ellis

• Decision Date: 06 April 1963
• Docket Number: No. 43202,43202
• Citation: 380 P.2d 408,191 Kan. 311
• Parties: V. Lorene ALLEN and Kenneth Eugene Allen, I, Appellants, v. Jeffrey Orville ELLIS, Jr., Appellee.
• Court: Kansas Supreme Court

Page 408

380 P.2d 408

191 Kan. 311

V. Lorene ALLEN and Kenneth Eugene Allen, I, Appellants, v. Jeffrey Orville ELLIS, Jr., Appellee.

No. 43202.

Supreme Court of Kansas.

April 6, 1963.

Rehearing Denied May 17, 1963.

Syllabus by the Court

1. Litigants are entitled to have the jury fairly answer important special questions of fact based upon the issues of the case which are duly submitted by the court, and upon which competent evidence was produced. Where the jury fails to answer certain special questions and the court fails upon timely request to require the jury to answer the special questions, it is reversible error.

2. There is nothing in the Uniform Operators' and Chauffeurs' License Act (G.S.1961 Supp., Ch. 8, Art. 2) that makes any exception to the standard of care and caution required as between minors and adults.

3. In an action brought to recover damages for a wrongful death, as more fully set forth in the opinion, the record is examined, and it is held: The trial court erred (1) in failing to require the jury to answer the special questions submitted to it by the court when requested by plaintiffs to do so; (2) in the admission of improper evidence; and (3) in giving certain erroneous instructions.

Oren Gray, Parsons, for appellants.

Herman W. Smith, Jr. and Glenn Jones, Parsons, and Elmer W. Columbia and John B. Markham, Parsons, on the briefs, for appellee.

WERTZ, Justice.

This was an action for damages for wrongful death brought by plaintiffs (appellants) V. Lorene and Kenneth Allen as parents and next of kin of their deceased minor son Kenneth Eugene Allen against defendant (appellee) Jeffrey Orville Ellis, Jr.

Except as they define the issues, the pleadings are unimportant and require little attention. All that need be said concerning them is that the petition as amended alleged that plaintiffs' son Kenneth was two years and nine months of age at the time of his death; that on June 16, 1960, at about 10:20 p. m., plaintiffs' son was walking across Main street in the city of Parsons and had proceeded past the center line of the street when he was struck by an automobile driven by defendant and was dragged approximately thirty-six feet. At the time of the collision the street was a four-lane, brightly lighted street, commonly referred to as a white way, having lights staggered every 100 feet with burning bulbs of 6,000 lumens or 600 candlepower; that as a result of the injuries received the child died within fifteen minutes after being struck.

The petition further alleged that the proximate cause of the child's death was due to six specified acts of negligence on the part of the defendant.

Defendant answered by way of a general denial, and as an affirmative defense alleged that the child's injuries and resultant death were proximately caused by the negligence of the parents, plaintiffs in this action. Plaintiffs replied by way of a general denial. On the issues thus joined the case was tried to a jury.

The pertinent evidence revealed that about ten o'clock on the night of June 16, 1960, plaintiffs' son was crossing Main street at Tenth from north to south in the city of Parsons. Main street is also designated as US-160 and is a four-lane street running east and west, a well-lighted white way with 600 candlepower lights every 100 feet. The weather was clear and the street was dry at the time in question. Defendant's vehicle was in good working and mechanical condition. Highway Patrolman Pribbenow was a witness to the accident who testified that as he was driving east on Main street he first observed defendant's car at Thirteenth and Main; that defendant was directly behind him; that a car driven by James Woods pulled along beside him in the outside lane; that they stopped at Thirteenth and Main to await the change of the traffic light; that he, Patrolman Pribbenow, pulled away from the stop light ahead of the other cars; that when he arrived at the intersection of Tenth and Main the white way street lights were burning and he observed the lights of the filling station on the corner; that the lights were also on at the Crumpet Hut across the street; that there was a white way light on the southeast corner of the intersection and one on the side of the street west of where the accident occurred; that he saw the child Kenneth step down from the curb into the street and take two or three steps; that he had no trouble seeing the boy; that he passed the intersection, and on looking into the rear view mirror of his automobile he saw the boy pass the left front headlight of the defendant's car but did not see him pass the other headlight; that defendant's vehicle caught the child; that the street was sixty-six feet wide and he found the body forty-six and one-half feet from the north curb; that the child had been traveling in a north-to-south direction; that the boy's clothing was definitely red.

The patrolman further testified he heard no noise of brakes being applied; that he heard no horn sounded by the defendant; that the defendant had two girls beside him in the front seat; and that defendant was traveling twenty-seven or twenty-eight miles per hour.

Policeman Wilkerson testified that defendant was driving the vehicle and had two passengers with him--all three were sixteen years of age; that he found the child lying under defendant's car and that the child was 'pretty well mangled,' both legs and one arm were broken; that the street was well lighted, there being a service station there and a big white way light right on the corner and another on the opposite side of the street, also a well-lighted ice cream store that caters to teenagers; that about two blocks south there is a park and swimming pool which are open to the public, the park being located just west of the swimming pool; that people take their children to the park for picnics; that there is a ball park just further east where children go to play. The officer testified the accident occurred in the business zone and that there was nothing between the white way light and the street where the boy would have been, no obstructions that make or cause shadows. He further testified he talked to the defendant later and that defendant said he did not see the child; further, that there are no crosswalks on either side of Tenth street at the intersection.

A Mr. Woods testified that he was a student, and on the evening in question, accompanied by two passengers, he was driving his Ford automobile; that he saw defendant driving his vehicle with two girls as passengers; that he passed defendant several times and defendant passed him several times; that the cars' windows were down and 'I imagine we hollered at them or talked to them.'

Woods further testified that when he stopped at Thirteenth and Main defendant's car was behind the state patrol car and that Woods' car was next to it in the right lane; that all three cars were headed east; that as they approached Tenth street he saw the child Kenneth; that it was light enough to see the boy and that he had no trouble seeing him leave the curb; that he, Woods, speeded up and signaled the patrolman to stop; that defendant's car was two or four car lengths behind Woods' car; that defendant did not apply his brakes nor sound his horn. Woods further testified he heard defendant say that he hadn't seen the boy at all.

Defendant testified that he had a driver's license with a restriction requiring him to wear glasses; that when he first saw him the child was in front of the left front fender; that he knew that this was a congested area, different businesses were located there, and children were frequently around the...