Diaz v. Duke, 45886

• Decision Date: 06 March 1971
• Docket Number: No. 45886,45886
• Parties: Maria T. DIAZ, Appellee, v. Dwight C. DUKE, Appellant.
• Court: Kansas Supreme Court

Page 48

482 P.2d 48

206 Kan. 650

Maria T. DIAZ, Appellee, v. Dwight C. DUKE, Appellant.

No. 45886.

Supreme Court of Kansas.

March 6, 1971.

Syllabus by the Court

1. In determining whether as a matter of law a defendant is guilty of negligence making him liable for the injuries the plaintiff may have sustained, all of the testomony favorable to the defendant must be accepted as true, and if the facts are such that reasonable minds might reach different conclusions thereon, the question must be submitted to the jury and cannot be determined by the district court as a matter of law.

2. The record in an action to recover damages for personal injuries the plaintiff alleged she sustained by reason of the defendant's negligence, is examined, and it is held: The district court erred in sustaining the plaintiff's motion for a directed verdict on the issue of liability, and in instructing the jury the defendant was negligent as a matter of law.

Herbert A. Marshall, of Marshall, Hawks, McKinney & Hundley, Topeka, argued the cause, and was on the brief for appellant.

Richard F. Waters, of Harper, Hornbaker, Waters & Abbott, Junction City, argued the cause and was on the brief for appellee.

FATZER, Justice:

The action was to recover damages for personal injuries sustained in an automobile collision of Grant Avenue, in Junction City.

At the close of all the evidence, and over the objection of the defendant, the district court sustained the plaintiff's motion for a directed verdict on the issue of liability, and instructed the jury the defendant was negligent as a matter of law. The verdict was for the plaintiff in the amount of $20,000, and the defendant has appealed. We reverse on the ground the defendant's liability was a question of fact to be determined by the jury.

In the late afternoon on June 30, 1966, the plaintiff was driving in a westerly direction on Grant Avenue in Junction City from her home in Fort Riley, to attend the grand opening of Gibson's Store which was to the south of and fronted on Grant Avenue. The avenue is a four lane concrete street with a medial strip, connecting Fort Riley with Junction City. The plaintiff had proceeded in the left lane of traffic for several blocks and came to a stop in the inside or left lane of traffic behind another car which had stopped to make a left turn into Gibson's parking lot. She had the left turn signal on, which continued to operate. At that time, there was heavy traffic in the two easterly lanes of Grant Avenue which she had to cross.

The defendant was also proceeding in a westerly direction on Grant Avenue in the inside or left lane of traffic. He was alone in his car, and he had about a half mile of clear vision down the street. There were other automobiles ahead of him, proceeding in the same direction, but he saw none of them stopped. He was traveling about 35 miles per hour, when the sun suddenly flashed into his eyes, reflecting off the hood of his freshly washed and waxed automobile and blinded him so that he did not see the plaintiff's car. He drove into the rear of the plaintiff's car at about the same speed he had been previously traveling.

The defendant testified that he was a sergeant in the United States Army and was stationed at Fort Riley; that he was not on duty on June, 60, 1966, bucause it was payday for everyone; that he owned a 1956 Chevrolet automobile which he washed, waxed and highly polished that day; that he worked about three hours on his car that afternoon cleaning and polishing it; that he started into Junction City where he planned to have dinner and attend a movie; that his automobile was proceeding westerly on Grant Avenue into Junction City; that he had been stationed at Fort Riley for about five days, having returned from Vietman, and that he was not aware of the opening of the new Gibson Store that day, or that it was located south of Grant Avenue, and that there was other traffic in the two westbound lanes, which was proceeding about the same speed as he was traveling. The following questions were asked and answered by him on direct examination:

'Q. Now, Sergeant, as you approached the place where this accident occurred, did anything occur to impair your vision of the street?

'A. Yes, sir. On the way in, the sun had been slightly in my eyes, but not enough to really bother me, and then just prior to the accident, the sun started really reflecting off the hood of my car, and it got me in the eyes.

'Q. Did this blind you?

'A. Yes, sir, it did.

'Q. What did you do when this happened?

'A. Took my foot off the gas and down-shifted into second gear.

'Q. And what were you intending to do with your car?

'A. I was intending to stop and try to get out of the left lane where I could get out of the road.

'Q. Was there any other traffic that kept you from pulling into that lane?

'A. Yes, sir, the right-hand lane was completely full.

'Q. Now, with the sun in your eyes, tell the jury whether you saw Mrs. Diaz's car before the accident.

'A. I never saw it.

'Q. And then what occurred?

'A. I had just gotten my foot off the clutch after shifting into second gear and ran into the back of her car.'

There was no evidence contrary to that of the defendant on the subject of the blinding nature of the sun's reflection into his eyes prior to...