Foreman v. Heinz, 41548
| Decision Date | 12 December 1959 |
| Docket Number | No. 41548,41548 |
| Citation | 347 P.2d 451,185 Kan. 715 |
| Parties | Lewis E. FOREMAN and Carra Leona Foreman, Appellees, v. Leonard N. HEINZ, Defendant, William E. Heinz, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. In a civil action for damages arising out of an automobile collision, provided a proper foundation is laid, a witness qualified as an expert may give his opinion, based upon the length of skid marks, location of vehicles, damage to vehicles and independent tests, as to the speed of an automobile involved in the collision, the weight to be given such evidence, of course, being a matter for the jury to determine.
2. In an action for wrongful death arising out of an automobile collision, resulting in a judgment and verdict for plaintiffs, the record is examined and considered and it is held the trial court did not err in any of the matters specified, and defendant's motion for a new trial was properly overruled.
Robert C. Foulston, 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, Donald L. Cordes and Robert L. Howard, Wichita, were with him on the brief for appellant.
Robert A. Thiessen and Richard W. Holmes, Wichita, argued the cause, and Donald I. Mitchell, Wichita, was with them on the brief for appellees.
This is an action for wrongful death arising out of an automobile collision. Judgment was for plaintiffs and defendant has appealed.
Plaintiffs are the parents of Ronald Foreman, who was six years of age at the time of his death. At about 8:35 P.M. on August 6, 1957, Ronald was out for a ride with the Carmichaels, who were friends and neighbors of his parents. The Carmichael car was traveling east on Pawnee Street at about thirty to thirty-five miles per hour. Mr. Carmichael, the driver, intended to turn north on Webb Road and slowed to about fifteen miles per hour, and, when about 100 feet west of the intersection, set his left-turn indicator light. While negotiating the turn the Carmichael car was hit by the car owned, and driven from the east, by defendant, William E. Heinz, age nineteen. The approximate point of impact was on Pawnee Street three feet south of the north edge of that street and seven feet west of the west side of Webb Road. The force of impact caused the Carmichael car, traveling in a northeasterly direction, to be thrown west and north, and it came to rest facing south, about thirty-five feet distant from the point of impact. Defendant's westbound car laid down 105 feet of braking skid marks prior to the collision, continued on west for 136 feet, and came to rest facing east. The passengers in the Carmichael car were thrown from it. Both cars were demolished, and plaintiffs' son was killed instantly.
Leonard N. Heinz, the father of defendant William E. Heinz, was joined as a party defendant on the theory of ownership of the car and that he knowingly permitted William, a known reckless driver, to operate a vehicle. His demurrer to plaintiffs' evidence was sustained, however, thereby removing him from the case.
The petition charged that William E. Heinz, hereafter referred to as defendant, was negligent in that he failed to keep a proper lookout for vehicles at the time and place in question; failed to have proper brakes in order to be able to stop, turn aside, or avoid striking the Carmichael car; in driving at a high and dangerous rate of speed in excess of seventy miles per hour; failing to keep his car under control, and in driving his car at a speed at which he could not stop within range of his vision. Recovery was sought in the amount of $25,000.
The answer denied negligence on the part of defendant and alleged that the death of plaintiffs' son was caused solely by the negligence of the driver of the Carmichael car in that he suddenly and without prior warning made a left turn directly in front of defendant's car; that he failed to keep a proper lookout and to give a proper signal of his intention to turn, and failed to observe defendant's car. As further defenses the answer alleged that defendant was acting in an emergency, and that if the collision was not caused by the negligence of the driver of the Carmichael car then it was an unavoidable accident for which no one was to blame.
Upon the issues thus joined the parties proceeded to trial and at the conclusion thereof the jury returned a general verdict for plaintiffs in the amount of $8,076.03, and answered special questions as follow:
'1. State the location of defendant's vehicle with reference to the point of collision at the time the plaintiff car commenced its left turn.
'Answer: East of Webb Road and north lane of Pawnee.
'2. State the speed of defendant's vehicle immediately prior to the time he observed the plaintiff vehicle turning.
'Answer: High and dangerous rate of speed at and on approach to intersection, in excess of 60 miles per hour.
'3. State, if you can determine from the evidence, what is the braking distance, exclusive of reaction time, for defendant's vehicle operated at the speed found in 2 above?
'Answer: Cannot determine.
'4. State, if you can determine from the evidence, what the braking distance would be for defendant's vehicle at a speed of:
'Answer:
(a) 55 miles per hour 226.9'.
(b) 60 miles per hour 270'.
(c) 65 miles per hour insufficient evidence.
(d) 70 miles per hour 367.6'.
(e) 75 miles per hour insufficient evidence.
(f) 80 miles per hour 480'.
'5. If you find for the plaintiffs, state the act or acts of negligence you find against the defendant which were a proximate cause of the collision.
'Answer:
1. Driving at high and dangerous rate of speed, at and on approach of intersection.
2. Failing to keep control of his car which...
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