Atkins v. Bayer

• Decision Date: 24 January 1970
• Docket Number: No. 45520,45520
• Citation: 204 Kan. 509,464 P.2d 233
• Parties: Tommy C. ATKINS, Appellant, v. Robert P. BAYER, Appellee.
• Court: Kansas Supreme Court

Page 233

464 P.2d 233

204 Kan. 509

Tommy C. ATKINS, Appellant, v. Robert P. BAYER, Appellee.

No. 45520.

Supreme Court of Kansas.

Jan. 24, 1970.

Syllabus by the Court

1. Expert testimony in the form of an opinion is not objectionable because it embraces the ultimate issue to be decided by the trier of the fact.

2. One seeking reversal of a judgment because of exclusion of evidence has the burden of demonstrating prejudice as well as error in the ruling complained of.

3. It is only when different minds can reasonably arrive at but one result that fact issues become questions of law justifying a court in substituting its judgment for that of the jury.

4. K.S.A. 8-547(c) requires the giving of an appropriate signal upon stopping or suddenly decreasing the speed of a motor vihicle. What constitutes an appropriate signal depends on the necessity for, and the driver's opportunity to give, an effective warning commensurate with the probable hazards revealed under the circumstances of the particular case, and is generally a jury question.

5. The record of trial in a negligence action arising out of a rear-end collision is examined and it is held: (1) The trial court did not commit reversible error in exclusionary rulings on evidence; (2) the trial court properly denied plaintiff's motion for judgment and for directed verdict upon the issue of liability; and (3) there was substantial competent evidence in support of the jury verdict.

James S. Phillips, Wichita, argued the cause, and Fred Hall, Wichita, was with him on the brief for appellant.

Vernon D. Just, Wichita, argued the cause, and Ralph Foster and William A. Wells, Wichita, were with him on the brief for appellee.

HARMAN, Commissioner.

In this damage action arising from a rear-end automobile collision plaintiff Tommy C. Atkins appeals from a judgment rendered against him upon an adverse jury verdict.

Plaintiff, defendant Robert P. Bayer, defendant's wife who was his passenger, and an investigating police officer were witnesses at the trial on the liability aspect of the case. Their testimony, viewed as it must be in the light most favorable to the prevailing party in the trial court, revealed the following: West Kellogg street on U.S. Highway 54 in Wichita is a four-lane divided highway with a speed limit of fifty miles per hour. There is an overpass bridge or viaduct where Kellogg goes over Seneca street. Near this viaduct the highway has connecting ramps and additional lanes for both entering and exiting traffic using Seneca street.

On July 6, 1966, at approximately 10:50 p. m. the plaintiff was driving a 1960 Corvair automobile west on Kellogg in the right hand lane at a speed of about forty-five miles per hour. There was moderately heavy traffic on the road. As plaintiff approached the east end of the viaduct he noticed a sign directing both northbound and southbound traffic exiting on Seneca street and an overhead sign stating 'Rough Road Ahead'. He proceeded west and just beyond the first exit he saw a yellow blinking caution light. About half way between the exit and the entrance ramps he deaccelerated his autombile. He noticed flare pots, then a tree of flags which would block traffic coming up a ramp. Then he saw a barricade. Using his rear-view mirror he noticed cars behind him in both lanes of traffic. He 'hit' his brakes and came to a sudden stop ten to twenty feet east of the barricade. He did not pump the brake pedal. East of this barricade another barricade was lying on its side. Evidently there had been some repair work in the area but the record does not reveal where or what kind. Some of the lights and flags referred to in the testimony were north of thr road upon which plaintiff and defendant were traveling.

Defendant was driving a small 1965 Chevrolet van about forty-five miles per hour in a westerly direction behind plainteff's vehicle. He became aware of plaintiff's vehicle when he saw its brake lights come on, at which time defendant was about 125 to 150 feet behind plaintiff's vehicle. Before this he had seen nothing to indicate any hazard. He saw traffic in the lane to his left and applied his brakes, making skidmarks fifty-six feet in length prior to hitting the rear end of plaintiff's auto.

Defendant testified that immediately after the collision plaintiff stated 'he was not aware of any trouble being there until he saw the shadow of this barricade, which he stopped in front of, either in the headlights of his car or the shadow of it from the overhead street lights'. Plaintiff testified he had no room to go around the barricade; the investigating police officer testified plaintiff would have had space to go around the barricade and proceed on west to the next barricade. Some of the flare pots along the highway were not lighted.

We have difficulty in determining from the record on appeal the exact physical situation. Plaintiff's witnesses used a diagram of the highway in testifying, indicating, without verbal clarification, various positions and locations upon it. This diagram in not reproduced in the record and in some instances the testimony with reference to lights, warning signs, curbs, ramps, and exit and entrance lanes loses much of its meaning and leaves these matters open to conjecture.

We should consider, first, plaintiff's contention the trial court erred in excluding opinion testimony of an expert witness offered by him. The investigating police officer, after being qualified as an expert witness in traffic accident investigation, was asked a long hypothetical question which purportedly called for his opinion as to whether a person in defendant's position would have seen plaintiff's automobile in time to stop and avoid the collision. Defendant objected to the from of the question. The trial court sustained the objection, apparently on the basis any answer given would invade the provice of the jury in determining the issue of negligence.

Our law on expert and other opinion testimony is now codified (K.S.A. Chap. 60, Art. 4, G.) The part pertinent here provides:

'(d) Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.' (K.S.A. 60-456(d).)

The question objected to here was put to the witness on the basis he had only to assume the truth of the facts therein stated. It did not require him to pall upon the weight or credibility of disputed evidence and thus in effect usurp the province of the jury. The facts hypothesized fairly well embodied plaintiff's theory of the case. As such, although a trial court is vested with a wide discretion in receiving opinion evidence (Osborn v. Lesser, 201 Kan. 45, 439 P.2d 395), we think the evidence could well have been received (see 2 Jones on Evidence, 5th ed., §§ 417-418). However, the fact that it was not does not require reversal. One seeking reversal of a judgment because of exclusion of evidence has the burden of demonstrating prejudice as well as error in the ruling complained of. We think any error in the exclusion was rendered harmless because of other testimony given by the expert witness. The hypothetical question put to the witness necessarily called for his special knowlege as to the distance within which under given...