Critchfield v. Ernzen, 40482

• Citation: 181 Kan. 284,310 P.2d 930
• Decision Date: 11 May 1957
• Docket Number: No. 40482,40482
• Parties: William F. CRITCHFIELD, Appellant, v. Robert ERNZEN, Warren McMeins, Wayne McMeins, and Clifford Van Tyle, a Co-partnership, doing business as McMeins Bros., Appellees.
• Court: United States State Supreme Court of Kansas

Page 930

310 P.2d 930

181 Kan. 284

William F. CRITCHFIELD, Appellant, v. Robert ERNZEN, Warren McMeins, Wayne McMeins, and Clifford Van Tyle, a Co-partnership, doing business as McMeins Bros., Appellees.

No. 40482.

Supreme Court of Kansas.

May 11, 1957.

Rehearing Denied June 14, 1957.

Syllabus by the Court.

The record in an action to recover damages to person and property sustained by the plaintiff in a collision of two motor vehicles on a public highway examined, and it is held, that under the conditions and circumstances detailed in the opinion the trial court did not err in setting aside the general verdict and sustaining defendants' motion for judgment on the special findings.

J. W. Lowry, Atchison, and Steadman Ball and Wm. E. Stillings, Atchison, on the brief, for appellant.

Willard L. Phillips, Kansas City, and John E. Buehler, Atchison, and Thomas M. Van Cleave, Jr., Kansas City, on the brief, for appellees.

PARKER, Chief Justice.

This was an action to recover damages to person and property sustained by the plaintiff in a collision between two motor vehicles on a public highway. The plaintiff appeals from an adverse judgment.

The pleadings are not involved and need only be detailed for the purpose of defining the issues. For present purposes it suffices to say the petition charges divers acts of negligence of the defendant Robert Ernzen, while driving a milk truck in the course of his duties as an employee of the defendants, Warren McMeins, Wayne McMeins and Clifford Van Tyle, a co-partnership, d/b/a McMeins Bros., in overtaking and colliding with plaintiff's farm truck on a public highway were the proximate cause of the damages sustained by him as the result of the collision of the two vehicles; that the answer, after denying material allegations of the petition, states all injuries and property damages sustained by plaintiff in the collision resulted from his own acts of negligence; and that the reply denies allegations of the answer inconsistent with the petition and, in substance, alleges the defendant truck driver, by the exercise of ordinary care, could have seen plaintiff in a position of peril from which he could not extricate himself in time to have avoided the collision.

On issues thus joined the cause came on for trial by a jury which, after introduction of evidence by the parties, was given written instructions and ultimately returned a general verdict for the plaintiff along with its answers to nine special questions submitted by the court.

Following action as above indicated plaintiff, who was dissatisfied with the amount of the verdict, filed a motion for a new trial and a motion to set aside answers made by the jury to three special questions relating to negligence on his part. When these motions were overruled defendants filed a motion for judgment upon the special findings of the jury notwithstanding the general verdict. This motion was sustained and the trial court then set aside the general verdict and rendered judgment in favor of defendants and against plaintiff upon the special findings for costs of the action. Thereupon plaintiff gave notice he was appealing from the rulings on all post-trial motions and the judgment.

Since it is conceded Ernzen was the employee of all other defendants and engaged in the performance of his duties as such employee at the time of the accident we shall throughout the course of this opinion, in the interest of brevity, make no further mention of the employer defendnats and refer to defendant Ernzen as appellee and the plaintiff as the appellant.

Strange as it may seem, this is one case where even the counsel for the parties involved concede there is little dispute in the testimony with respect to pertinent and material facts of record. Even so, in order to properly understand the issues, it will be necessary to briefly outline the evidence on which the rights of the parties depend. This will be done by stating the facts about which there is no controversy and by giving our version of the evidence respecting the one or two points about which there is any dispute.

At about 10:30 a. m. on the morning of October 15, 1954, appellant was driving his one-ton farm truck east on U. S. Highway 73 just east of Shannon, Kansas. The highway at this point was blacktop, eighteen to twenty feet wide with shoulders forty to fifty feet from bank to bank. Approaching the place where the accident occurred from the west the road comes up over a hill, the top of which is some 300 to 315 feet west of a farm driveway into which appellant was attempting to turn, when the collision occurred. At the top of this hill is a gravel road going south. As the appellant, accompanied by a passenger named Murray who was riding in the right front seat, approached the scene of the collision he was driving approximately thirty miles per hour. His truck was just under eight feet wide, between nine and ten feet high, with a red stockrack and with cab painted yellow. To the east from the top of the hill the slope was downward and clear for a distance of approximately one-half mile. As appellant approached the top of the hill he noticed a truck some quarter mile behind him, traveling in the same direction. As he reached the top of the hill he rolled down the left window of his truck and put out his hand as a signal of his intention of turning left to the north at a farm driveway, located some 300 feet to the east down the road, and continued signaling until just before attempting to turn his truck into such driveway. At or about the same time he put on his brakes and reduced his speed to perhaps twenty miles per hour. Appellee in the meantime had topped the hill and appellant saw his vehicle at the top of such hill when appellant was about 150 feet down the hill, i. e., one-half way between the top of the hill and the place of his intended turn. Thereafter appellant made no attempt to look to the rear again and was oblivious of appellee and the oncoming milk truck until the moment he prepared to turn into the driveway. Just as appellant started such turn to the left or north he became aware of the roar of the motor of appellee's milk truck which was then in the process of passing him. At that time the front end of appellant's truck was north of the center line of the highway. He immediately attempted to turn back into the right-hand lane of traffic but the heavily loaded milk truck struck his farm truck at its left front door with the result the accident occurred, both trucks were severely damaged and appellant was seriously injured.

The submitted special questions and the answers made thereto by the jury complement the foregoing factual statement and are so highly important to the appellate issues involved they must be quoted at length. They read:

1. 'Q. Did the plaintiff give an arm signal of his intention to turn left into the private drive continuously during the last 100 feet traveled by his truck before turning toward the private drive? A. Yes.

2. 'Q. Just before the plaintiff started to make his turn into the left lane to enter a private drive, was there anything to obstruct his vision to the west along the highway upon which the defendant's truck was approaching? A. No.

3. 'Q. After the plaintiff looked in his rear vision mirror and saw the defendant's truck about 150 feet away and approaching plaintiff's car, did the plaintiff, immediately before he actually commenced to make his turn, again look to see whether any vehicle was coming behind him from the west? A. No.

4. 'Q. At the time the plaintiff commenced to turn his truck to the left so that it crossed the center line of the highway, was the defendant's truck so close thereto that the turn could not be made with reasonable safety? A. Yes.

5. 'Q. Was the defendant in the process of passing the plaintiff's truck when the plaintiff made his turn to the left with the intention of entering the private drive? A. Yes.

6. 'Q. If you find a verdict in favor of the plaintiff, state each and every act of negligence of which you find the defendant, Ernzen guilty. A. His failure to see hand signal and stop light.

7. 'Q. Was the plaintiff guilty of any act of negligence which directly contributed to the collision? A. Yes.

8. 'Q. Was the collision the result of an unavoidable accident as defined by the Court's instruction? A. No.

9. 'Q. Did the plaintiff turn his truck to the left from a direct course on the highway at a time when such movement could not be made with reasonable safety? A. Yes.'

The first and, we may add, the principal question advanced by appellant is that special questions 4 and 9 should not have been submitted to the jury. In passing we note there is some quibble between the parties as to whether objection was made by appellant to these questions prior to their submission. Although the record is not clear on the point we resolve that controversy in his favor and proceed accordingly.

In approaching this question it must be remembered that under the pleadings one of the issues in this case was whether appellant was guilty of negligence because he had turned his vehicle from a direct course upon the highway without first...