Cross' Estate, In re

• Decision Date: 14 May 1960
• Docket Number: No. 41720,41720
• Citation: 352 P.2d 427,186 Kan. 590
• Parties: Matter of the ESTATE of Otis E. CROSS, Deceased. Alyce M. WEST, Claimant, Appellant, v. Mary CROSS, Administratrix, Appellee.
• Court: Kansas Supreme Court

Page 427

352 P.2d 427

186 Kan. 590

Matter of the ESTATE of Otis E. CROSS, Deceased.

Alyce M. WEST, Claimant, Appellant, v. Mary CROSS, Administratrix, Appellee.

No. 41720.

Supreme Court of Kansas.

May 14, 1960.

Syllabus by the Court.

In an action to recover damages for injuries sustained in a rear-end collision between motor vehicles at an approach to a regulated street intersection in the City of Wichita, the record examined and, under the facts, conditions and circumstances set forth in the opinion, held to disclose (1) evidence to sustain the jury's answers to the special questions and the general verdict; (2) no reversible error in the admission of evidence or in the instructions complained of; (3) plaintiff's motion for a new trial was properly overruled; (4) no error warranting a reversal of the judgment.

Keith Eales and L. M. Kagey, Wichita, argued the cause and were on the briefs for appellant.

Robert C. Foulston and Donald L. Cordes, Wichita, argued the cause, and George B. Powers; Carl T. Smith; John F. Eberhardt; Stuart R. Carter; Malcolm Miller; Robert N. Partridge; Robert M. Siefkin; Richard C. Harris; Anthony T. Dealy; Gerald Sawatzky and Robert L. Howard, Wichita, were with them on the briefs for appellee.

PARKER, Chief Justice.

This action originated in the probate court with the filing of a petition, in the nature of a claim, to recover damages from the estate of a decedent for personal injuries alleged to have been sustained by the plaintiff (claimant), Alyce M. West, when a motor vehicle driven by the decedent, Otis E. Cross, collided with the rear-end of her automobile at the approach to a street intersection in the city of Wichita on the afternoon of April 30, 1957. Pursuant to a request, included in the petition, the cause, as authorized by statute (G.S.1949, 59-2402a) was transferred to the district court where all subsequent proceedings were had. There a trial by jury resulted in a verdict and judgment in favor of the decedent's estate and the plaintiff appeals.

The pleadings identify the parties, outline the existing factual situation and contain much that is necessary and essential to a proper disposition of the appellate issues involved. Therefore, omitting formal averments, inconsequential allegations, and prayers for relief, we quote and summarize therefrom at length.

The petition reads:

'1. Claimant is a resident of Sedgwick County, Kansas, and her correct post-office address is: 2725 West Pawnee, Wichita, Kansas.

'2. Mary Cross, who is a resident of Sedgwick County, Kansas, and whose correct post-office address is: 3201 Penley Drive, Wichita, Kansas, is the duly appointed, qualified and acting administrator of the estate of Otis E. Cross, deceased, who died on August 30, 1957, a resident and citizen of Sedgwick County, Kansas.

'3. On or about April 30, 1957, at or about 1:30 p. m., a collision occurred between an automobile owned and operated by claimant, and a panel delivery truck owned and operated by the deceased, * * *.

'4. Claimant * * * was proceeding East on 13th Street in the City of Wichita, and stopped her vehicle approximately six car-lengths West of the intersection of 13th Street and Mosley Avenue in said City. Several automobiles, * * * were halted immediately in front of claimant. * * * Plaintiff had brought her vehicle to a full stop and remained stationary * * *, when the rear of her automobile was struck with great force and violence by the truck operated by the deceased.'

Paragraph 5 of such pleading asserts that the force of the impact impelled claimant's vehicle into the rear of another automobile with such force and violence as to cause injuries to her head, neck, knees, shoulders, legs and arms.

Paragraph 6 charges that the collision and injuries were the direct and proximate consequence of the decedent's negligent conduct (a) in following plaintiff's car more closely than was reasonable and prudent; (b) in failing to bring his vehicle to a stop prior to the collision; (c) in operating his vehicle at a speed greater than was reasonable, safe and proper; and (d) in operating his vehicle with defective and unsafe brakes, contrary to described Ordinances of the City of Wichita.

Paragraphs 7, 8 and 9 detail at length the nature and extent of the injuries and the damages claimed to have been sustained by plaintiff as the result of the accident.

The answer of the defendant (administratrix) contains a general denial; admits the accident happened at the alleged time and place; denies Otis Cross was guilty of any of the acts of negligence charged in the petition; alleges the accident was an unavoidable one and brought about by the sudden, unexpected mechanical failure of the brakes on the vehicle driven by such decedent; and denies plaintiff sustained injuries of the nature or to the extent alleged in her petition.

The reply denies adverse allegations of the answer.

After a full and complete trial on issues joined as related the cause was submitted, under written instructions, to the jury which returned a general verdict for the defendant along with its answers to special questions, to which no objections were made at the time of their submission. Such questions and answers read:

'1. Was decedent guilty of negligence which was a cause of the collision? Answer: No.

'2. If you answer question number 1 in the affirmative, then state the act or acts of negligence you find against the decedent, Otis E. Cross. Answer: * * *.

'3. Was the collision the result of an unavoidable accident? Answer: Yes.'

Following action as indicated the jury was polled and, after each juror had answered that the verdict and answers to the special questions were his or her individual verdict and answers to the special questions, was discharged. Subsequently, and in due time, plaintiff filed a motion for a new trial and a motion to set aside the answers to the special questions. Thereafter, and when these motions were overruled, the trial court approved the general verdict and the answers to special questions and then rendered judgment against the plaintiff and in favor of the defendant. Thereupon plaintiff gave notice of her appeal to this court where, under proper specifications of error, she is now entitled to review and disposition of the questions hereinafter to be considered and discussed.

At the outset the issues involved will be simplified by reference to several matters, beyond dispute, which will not be noted.

This is a case where the unfortunate accident in question is not claimed to have been caused by any negligence on the part of the appellant (claimant).

Although all negligence charged in the petition is denied, appellee admits the action resulted from decedent (Cross) colliding with the rear-end of appellant's automobile; and the principal defense relied on by appellee is that such accident is an unavoidable one and brought about by the sudden unexpected mechanical failure of the brakes of the vehicle driven by the decedent.

All arguments advanced by the parties with respect to negligence on the part of the decedent hinge around, and are limited to, questions pertaining to the alleged operation of decedent's truck with defective or unsafe brakes.

The established law of this state is that the failure of brakes to hold or work at the time of an accident does not constitute negligence as a matter of law. See Calnon v. Cook, 178 Kan. 517, 289 P.2d 731, where it is said:

'* * * Plaintiffs argue the failure of defendant's brakes to work at that particular time and place constituted negligence as a matter of law. There was substantial evidence that just a few minutes before the collision, with which we are dealing, defendant had driven down several grades and turned several corners and the brakes on the truck had worked. It was not until he was confronted with this herd of cattle in the road ahead of him and he attempted to use his brakes that he discovered they were not working. There was also evidence that master brakes, such as those with which this truck was equipped, go out suddenly and without warning. The evidence is not entirely clear as to the part defendant's emergency brakes played in the accident. However all the surrounding facts and circumstances upon which reasonable minds might differ as to defendant's negligence were sufficient to warrant the question being submitted to the jury.' 178 Kan. at page 520, 289 P.2d at page 733.

See, also, Stephenson v. Wallis, 181 Kan. 254, 311 P.2d 355, where the foregoing portion of the Calnon case is quoted with approval and it is said and held:

'These decisions are in line with the general rule that the defendant's negligence in the operation of a motor vehicle is a question for the jury. Where there is a reasonable doubt as to the facts or as to the inference to be drawn from them; i. e., where reasonable men may differ as to the existence of such negligence, negligence in the management and control of an automobile just prior to an accident is likewise a jury question. See 5 Am.Jur., Automobiles, § 673.

'In this case the defendant was not guilty of negligence as a matter of law because 'his foot slipped off the brake' and the court was correct in submitting the question of negligence to the jury and in upholding its verdict.' 181 Kan. at pages 257, 258, 311 P.2d at page 358.

Moreover, in this case, the jury was specifically advised as to the law governing its consideration of the issues and evidence relating to the failure of the truck brakes to hold just prior to the accident. Instruction No. 5 reads:

'The mere failure of brakes on a vehicle is not sufficient to make the driver liable in negligence. In addition, it must appear that the driver knew, or in the exercise of reasonable care should have known that the brakes were defective and yet continued to operate the vehicle after he knew or should have known of that fact.'

Appellant made no objection to the foregoing instruction and no...