Employers' Mut. Cas. Co. v. Martin
| Decision Date | 07 April 1962 |
| Docket Number | No. 42599,42599 |
| Citation | 189 Kan. 498,370 P.2d 110 |
| Parties | EMPLOYERS' MUTUAL CASUALTY COMPANY and Floyd C. Puckett, Appellants, v. Paul M. MARTIN, Jr., and Louis H. Valentin, Individually and Doing Business As Valentin Sheet Metal, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In an action to recover for personal injuries sustained by plaintiff, a pedestrian, when he was struck by defendant's vehicle, the record is examined and considered, and, for the reasons set forth in the opinion, it is held that under the evidence in the case it was error to give, over plaintiff's objection, an instruction on 'unavoidable accident,' and that plaintiff is entitled to a new trial.
Robert A. Thiessen, Wichita, argued the cause, and Donald I. Mitchell, Richard W. Holmes and Nicholas W. Klein, Wichita, were with him on the brief for appellants.
Donald R. Newkirk, Wichita, argued the cause, and Wayne Coulson, Paul R. Kitch, Dale M. Stucky, Robert J. Hill, Gerrit H. Wormhoudt, Philip Kassebaum, John E. Rees, Robert T. Cornwell, Willard B. Thompson and David W. Buxton, Wichita, were with him on the brief for appellees. Hugo T. Wedell and Homer V. Gooing, Wichita, of counsel.
This was a subrogation action brought pursuant to the provisions of G.S.1949, 44-504, as amended, and G.S.1949, 44-532, to recover for personal injuries sustained by plaintiff, Floyd C. Puckett, a pedestrian, when struck by a truck owned by defendant, Valentin Sheet Metal, and being driven by defendant, Paul M. Martin, Jr.
No questions under the workmen's compensation act are involved in the case.
Puckett will be referred to as plaintiff and Martin as defendant.
A jury trial resulted in a general verdict for defendant. No special questions were submitted.
Plaintiff has appealed from the order overruling his motion for a new trial and sets forth seven specifications of error.
The controlling question in the case is whether, under the evidence, the court erred in giving, over plaintiff's objection, an instruction on unavoidable accident.
The answer to the question calls for a brief discussion of the evidence and the issues joined by the pleadings.
On the afternoon in question plaintiff had parked his delivery truck parallel to the west curb on a north-south street in Wichita. It was headed south. The street was thirty feet wide. After visiting with friends in a house nearby he returned to his truck. Being concerned about the amount of air in his left rear tire--he started to check it. As he was at the northeast corner of his truck checking the tire his foot was run over by a wheel of defendant's pickup truck, and he also was struck by a projecting rear-vision mirror on defendant's truck. He was thrown about twenty feet by the impact.
Defendnat's truck was being driven north and at the instant in question was in the act of passing, on the left, another northbound vehicle. Due to the positions of the vehicles in question--although there was room to pass--it is apparent that it was a rather 'close squeeze.' Defendant was issued a traffic ticket for 'driving on the wrong side of the street,' and upon a plea of guilty was fined a nominal sum.
The petition charged defendant with various acts of negligence, including excessive speed and driving on the wrong side of the street.
The answer denied negligence and alleged that plaintiff's injuries were solely and proximately caused by his failure to exercise ordinary care. As a further defense it was alleged that plaintiff was guilty of contributory negligence and that the accident was an unavoidable accident, for which defendant was in no way to blame.
The reply denied plaintiff's negligence or contributory negligence, and specifically denied defendant's allegation of unavoidable accident.
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