Curby v. Ulysses Irr. Pipe Co.

• Decision Date: 24 January 1970
• Docket Number: No. 45512,45512
• Parties: Orby A. CURBY, Appellant, v. ULYSSES IRRIGATION PIPE COMPANY, Inc., a Corporation, Appellee.
• Court: Kansas Supreme Court

Page 245

464 P.2d 245

204 Kan. 456

Orby A. CURBY, Appellant, v. ULYSSES IRRIGATION PIPE COMPANY, Inc., a Corporation, Appellee.

No. 45512.

Supreme Court of Kansas.

Jan. 24, 1970.

Rehearing Denied Feb. 27, 1970.

Syllabus by the Court

1. It is incumbent upon the party appealing to bring up a complete record of all matters upon which appellate review is sought.

2. Unless an instruction to which an objection is made is a clear and prejudicial misstatement of the law, it can be reviewed only when other instructions which may or may not modify its intent and effect are made a part of the record, in order that all instructions given may be examined together.

3. The supreme court has broadly disapproved 'pure accident,' 'unavoidable or inevitable accident,' or equivalent accident instructions in negligent cases involving motor vehicles where negligence, burden of proof, and proximate cause are properly defined in the district court's instructions to the jury.

4. The term 'unavoidable accident' excludes and repels the idea of negligence of either party, and implies that the injury could not have been prevented by their exercise of ordinary care and prudence.

5. The foundation for an unavoidable accident or equivalent accident instruction exists only when the court can say from a consideration of the evidence, there is no negligent act or omission of one or both of the parties to the action.

6. A party to a negligence action involving the collision of motor vehicles is not entitled to the protection of the doctrine of unavoidability if his negligence has created, brought about, or failed to remedy a dangerous condition resulting in a situation where the collision is thus made inevitable or unavoidable at the time of its occurrence. (Employers' Mutual Casualty Co. v. Martin, 189 Kan. 498, 370 P.2d 110.)

7. The determination whether the probable effect of a specific instruction has been to mislead the jury, and whether the jury has been prejudiced so as to require reversal depends upon all the circumstances of the case including the evidence.

8. The record in a negligence action to recover for personal injuries and property damages sustained as a result of the collision of motor vehicles is examined, and, as fully stated in the opinion, it is held the district court's Instruction No. 11 on unavoidable accident was unwarranted by the evidence and the facts and circumstances presented in the record, and constituted a clear and prejudicial misstatement of the law.

Lelyn J. Braun, Garden City, argued the cause, and Dale H. Corley, Garden City, was with him on the brief for appellant.

Lloyd Haag, Garden City, argued the cause, and A. M. Fleming, David E. Templeton, Dale E. Saffels and Clifford R. Hope, Jr., Garden City, were with him on the brief for appellee.

FATZER, Justice.

This was an action for personal injuries and property damage sustained by the plaintiff, Orby A. Curby, when his automobile was struck by a trailer owned by the defendant, Ulysses Irrigation Pipe Company, Inc. The trailer was being pulled by the defendant's pickup truck which was driven by its employee, Alvin M. Calvin.

The parties will be referred to as they appeared in the district court.

The issues were tried to a jury which returned a special verdict in favor of the defendant. (K.S.A. 60-249(a).) The plaintiff has appealed and assigns as error the overruling of his motions for judgment notwithstanding the verdict and for a new trial.

The crux of the appeal is whether, under the evidence, the district court erred in giving, over the plaintiff's objection, an instruction on 'unforeseeable accident.'

The determination of the question requires a brief re sume of the issues set forth in the pretrial order and the evidence. The pretrial order superseded all pleadings and controlled the subsequent course of the action. As stated therein, the issues are summarized:

On June 25, 1966, the plaintiff was driving his 1965 Ford automobile and pulling a 1966 Shasta Trailerette in the eastbound traffic lane on U.S. 50 Highway approximately four miles east of Lakin, Kansas. He was traveling between 45 and 50 miles per hour. The highway was blacktop surfaced, 30, feet six inches wide, and in good condition. The plaintiff met a 1966 Ford pickup truck owned by the defendant and operated by its employee, Calvin. The pickup was traveling approximately 50 miles per hour in the westbound traffic lane and was pulling a four-wheel trailer loaded with irrigation pipe. As the two vehicles met, the trailer suddenly made a sharp swerve and crossed over the center line of the highway and into the eastbound traffic lane where the plaintiff was proceeding. The plaintiff did his best to avoid a collision but was unable to do so. The left front of the trailer collided with the left front and side of the plaintiff's automobile at an angle. The point of impact was two feet south of the center line in the eastbound traffic lane. The pickup truck did not dollide with the plaintiff's automobile. As a result, the plaintiff sustained property damage and personal injuries in the amounts alleged.

The plaintiff contended the collision was proximately caused by the negligence of the defendant in the following particulars: (1) In allowing the trailer to cross over into the plaintiff's side of the highway; (2) in having a defective hitch and tongue upon the trailer; (3) in operating the pickup truck when it had a low left rear tire which was known by the defendant's employee or should have been known by him, and (4) in failing to inspect the tires on the pickup and discover the damaged tire.

The defendant admitted the collision occurred at the time and place alleged, and that Calvin was its employee who was driving the pickup in the course of his employment. It further admitted the trailer crossed over the center line into the plaintiff's side of the highway, but alleged it did so because of a sudden and unavoidable accident in that the left rear tire on the pickup suddenly went flat as a result of picking up a four-inch spike, causing an unavoidable swerve of the trailer. It specifically denied that it or its employee were negligent in any respect, and alleged the collision was the result of an unavoidable accident; further, that any damages sustained by the plaintiff were incurred because of his contributory negligence and want of care, since he had opportunity to observe the trailer swerving and failed to stop or steer his vehicle to avoid the collision.

Both parties offered evidence, and at the conclusion of the trial the plaintiff and the defendant each moved for a directed verdict which was overruled. The plaintiff made objection to Instruction No. 11 on nuavoidable accident, and to Special Question No. 1 as to the defendant's negligence, which were overruled.

The district court submitted a special verdict in the form of special written findings upon issues of fact to which the parties had stipulated and agreed in the pretrial order with respect to the defendant's negligence and the plaintiff's contributory negligence. In answer to Question No. 1, the jury found the defendant's driver was not guilty of any act or acts of negligence in the particulars claimed by the plaintiff which was or were the proximate cause of the collision.

The plaintiff's motions for judgment notwithstanding the verdict and for a new trial were overruled by the district court.

The plaintiff contends the district court erred in permitting the defense of unavoidable accident to be brought into the case, and in giving Instruction No. 11 over his objection. The instruction reads:

'No. 11

'The burden of proof is upon the plaintiff to prove to your satisfaction the following:

'1. That the defendant or the defendant's driver was negligent in one or more of the particulars contended by the plaintiff, as set out in Instruction No. 2.

'2. That said negligence was the proximate cause of the collision.

'3. The damages sustained.

'The defendant admits that the trailer was on the wrong side of the road but contends that it got there without negligence upon the part of the defendant or defendant's driver because of a sudden unforeseeable accident in that the left rear tire of the pickup suddenly went flat as a result of picking up a four inch spike. The burden of proof is upon the defendant to prove that such sudden unforeseeable accident occurred.

'If you find that such sudden unforeseeable accident occurred, without negligence upon the part of defendant or its driver, and that after it occurred the defendant's driver was unable in the exercise of ordinary care to avoid the collision, then you should answer Special Question No. 1 'No'.

'That a sudden unforeseeable accident occurred is the only issue upon which the defendant has the burden of proof. upon all other issues the burden of proof remains upon the plaintiff.

'An unforeseeable accident is an occurrence which could not reasonably have been foreseen or anticipated by an ordinarily intelligent careful prudent person under like circumstances.'

In Kreh v. Trinkle, 185 Kan. 329, 343 P.2d 213, this court broadly disapproved 'pure accident,' 'unavoidable or inevitable accident,' or equivalent accident instructions in negligent cases involving motor vehicles. The rationale of the court's disapproval was based upon the fact that in a negligence action the plaintiff must prove the injury complained of was proximately caused by the defendant's negligence, and the defendant under a general denial may show any circumstance which mitigates against his negligence or its causal effect. The court declared that since such an instruction merely restates a feature of the law of negligence which in substance is necessarily covered by proper instructions on negligence, burden of proof, and proximate cause, it is not needed, serves no useful purpose, operates to overemphasize the defendant's case, and tends to mislead and confuse the jury.

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