Bechard v. Concrete Mix & Const. Inc.
| Citation | 218 Kan. 597,545 P.2d 334 |
| Decision Date | 24 January 1976 |
| Docket Number | No. 47804,47804 |
| Parties | Priscilla BECHARD, Appellant, v. CONCRETE MIX & CONSTRUCTION INC., and the City of Great Bend, Kansas, a Municipal Corporation, Appellees. Sandra L. MEYER, Appellant, v. CONCRETE MIX & CONSTRUCTION INC., and the City of Great Bend, Kansas, a Municipal Corporation, Appellees. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court
1. General rules to be considered on appeal in determining the correctness of a trial court's instructions are stated and applied.
2. The function of instructions is to advise the jury with respect to the law governing all issues joined by the pleadings upon which evidence is adduced and to advise the jury regarding the verdicts it is possible to render on the evidence actually adduced.
3. If improvements are being made in a street, a municipality is not required to close the street to travel, but may temporarily place materials or obstructions thereon so as to make it dangerous, without incurring liability, provided reasonable care is exercised to warn the public of the danger occasioned by the obstruction.
4. The trial court's instructions are examined in an action to recover damages for personal injuries sustained in an automobile collision and it is held that they fairly instruct the jury with respect to the law governing all issues of fact raised by the pleadings.
William A. Hensley, of Turner & Hensley, Chartered, Great Bend, argued the cause, and H. Lee Turner and Raymond L. Dahlberg, Great Bend, were with him on the brief for the appellants.
Jerry M. Ward, of Hampton & Ward, Great Bend, argued the cause for the appellee, Concrete Mix & Construction Inc., and Edward R. Moses, Great Bend, argued the cause for the appellee, City of Great Bend, and were on the brief for the appellees.
This appeal involves two actions to recover damages for personal injuries arising out of an automobile collision. The actions were consolidated and were tried before the same jury. The plaintiffs-appellants are Priscilla Bechard and Sandra L. Meyer, who were passengers in the automobile involved. The defendants-appellees are the Concrete Mix and Construction Inc., and the city of Great Bend, Kansas. We will refer to them as Concrete Mix and the city. The facts in this case are not greatly in dispute and are essentially as follows: On January 1, 1971, at approximately 1:00 a. m. an accident occurred on a street which was undergoing extensive improvements in Great Bend. Concrete Mix, a construction contractor, was engaged in the repair, improvement and construction of Main Street between Seventh and Tenth Streets. This work was being performed under the supervision and control of the Kansas State Highway Commission. The project was being carried out in accordance with a contract between the state highway commission and the city of Great Bend. The contract between Concrete Mix and the commission provided that Main Street would be closed to public travel between Seventh and Tenth Streets while the construction project was in progress. Barricades were placed on Main Street at a point just north of Seventh and Main and at a point just south of Tenth and Main. There were also barricades placed on the extreme west edges of Main Street where it intersected Eighth and Ninth Streets. The commission established a detour from Seventh Street, traffic going one block east then north on Kansas Avenue to Tenth and then back to Main. The construction area on Main Street was not completely closed to all traffic. There were openings left in the barricades at Seventh and Eighth Streets to allow local traffic to reach homes and businesses located on the closed street. It was undisputed that all of the signs and barricades conformed to requirements of the state highway commission. Barricades had also been placed across the driveway of the Knights of Columbus Club which was located on the southwest corner of Eighth and Main.
On December 31, 1970, the plaintiff, Priscilla Bechard, and her friend, Danetta Schartz, decided to attend a party that night at the Knights of Columbus Club with the plaintiff, Sandra Meyer, and two other girls. Danetta Schartz drove the car with the other women as passengers to the club. To get there Danetta Schartz drove south on Williams Street, the street just west of Main, turned into an alley and approached the Knights of Columbus parking lot from the west. Finding the parking lot full she drove through the lot onto Main and parked on Main in front of the Foster Lumber Company which was located on the northwest corner of Seventh and Main. There was evidence presented which showed that the barricades which blocked access from the parking lot of the Knights of Columbus Club to Main Street had been removed by persons unknown after they had been checked earlier that same evening by employees of Concrete Mix. At about 1:00 a. m. the girls decided to leave and go to the plaintiff Bechard's home which was located to the north of the Knights of Columbus Club. Danetta Schartz backed her car out of her parking space clear across Main Street to the east, turned, and drove north on Main Street in the construction area. The automobile struck a road grader which was parked on Main Street about 21 feet from the curb and about 35 feet south of Ninth Street. In this collision the plaintiffs suffered the personal injuries which brought about this litigation.
There was testimony of several witnesses that cars were using or traveling on Main Street in the construction area prior to the time of this accident and during the construction period both during the day and the night. The women in the car testified on direct examination that they saw no signs or barricades on Main Street, that they proceeded north and that there were no lights, barricades, or signs immediately around the road grader. There was undisputed evidence that the maintainer was parked under a street light which was lit at the time of the accident and that the street was in the general lighting condition of that of a business street illuminated by street lights. On cross-examination both of the plaintiffs testified that they knew of the barricades on Main at Seventh and Tenth Streets and that they knew the construction project was in progress. There was evidence that after the barricades had been removed by persons unknown from in front of the parking lot at the Knights of Columbus Building, they were placed across Main Street Close to its intersection with Eighth Street. The plaintiff, Priscilla Bechard, testified that prior to December 31, she was familiar with the barricades at Tenth and Main and that when the Schartz vehicle drove through the parking lot of the Knights of Columbus Building and parked on Main Street, she saw cars which were not parked in a normal pattern on Main Street and that she saw the barricade across the street at the Seventh Street intersection. The plaintiff, Sandra Meyer, testified that when they parked on Main Street, they parked beside the barricade and when they left the Knights of Columbus Club she was aware of the barricades at Seventh and Tenth on Main Street and knew they were erected in connection with the construction project which was underway at the time.
In each of their petitions the plaintiffs alleged that the employees of Concrete Mix had 'negligently parked a road maintainer in the middle of said street, and negligently left said street in so dangerous and improper state by reason of the lack of lights or barriers, that on January 1, 1971, at approximately 1:35 o'Clock A. M., the automobile in which plaintiff was riding as a passenger collided with said road maintainer, causing injuries and damages to plaintiff. . . .' Each of the plaintiffs further alleged that the accident resulting in injuries and damages to the plaintiff, was proximately caused by the negligence of the defendants. Concrete Mix and the city filed separate answers to each of the petitions, denying that the collision was due to the negligence of that defendant and alleged that the proximate cause of the collision was the negligence of Danetta Schartz in operating her automobile in a negligent manner. Each of the answers also raised the affirmative defenses of contributory negligence on the part of each plaintiff. The pleadings were based solely on the theory of negligence. The pretrial order filed in each case showed clearly that the issue of liability was to be determined on the basis of alleged negligent conduct on the part of Concrete Mix and the city of Great Bend and the alleged contributory negligence of each of the plaintiffs. Following the pretrial conference the two cases were tried together by a jury. The case was hotly contested and ably tried by counsel for all parties in volved. The jury brought in a verdict in favor of the defendants and the two plaintiffs have appealed to this court alleging trial errors.
The plaintiffs' points on appeal involve only the correctness of the court's instructions to the jury. There is no complaint as to rulings on the admissibility of evidence. Stated simply, it is our task to determine whether or not the trial court erred in its instructions presented to the jury and in failing to give certain instructions which were suggested by the plaintiffs. At the outset it would be helpful to consider some of the general principles which are to be applied by this court in determining whether or not instructions of the trial court are in error. They are as follows:
(1) The function of instructions is to advise the jury with respect to the law governing all issues joined by the pleadings upon which evidence is adduced and to advise the jury regarding the verdicts it is possible to render on the evidence actually adduced. (King v. Consolidated Products Co., 159 Kan. 608, 610, 157 P.2d 541, 158 A.L.R. 1248; Schroeder v. Richardson, 196 Kan. 363, 411 P.2d 670; Forney v. Gerling, 198 Kan. 613, 620, 426 P.2d 106.)
(2...
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