Gardner v. Welk

• Decision Date: 14 July 1964
• Docket Number: No. 43739,43739
• Parties: David GARDNER, by Lillian Gardner, His Natural Guardian and Next Friend, Appellee, v. Ernest G. WELK, Appellant.
• Court: Kansas Supreme Court

Page 1019

393 P.2d 1019

193 Kan. 445

David GARDNER, by Lillian Gardner, His Natural Guardian and Next Friend, Appellee, v. Ernest G. WELK, Appellant.

No. 43739.

Supreme Court of Kansas.

July 14, 1964.

Syllabus by the Court

1. In an action to recover damages arising out of an automobile collision, where the evidence is such as to lead to no reasonable conclusion than that it was the result of negligence on the part of one or both parties, an instruction on 'unavoidable accident' is properly refused.

2. The rule of 'sudden emergency' may not be invoked by one who brought the emergency upon himself by his own wrong or who did not use due care to avoid it.

3. In an action to recover damages arising out of an automobile collision, the record is examined and it is held that no prejudicial error has been shown.

H. Lee Turner, Great Bend, argued the cause, and J. Eugene Balloun and James L. Berglund, Great Bend, and Don E. Brown, Pratt, were with him on the briefs, for appellant.

Bill Murray, Pratt, argued the cause, and B. V. Hampton, Pratt, was with him on the brief, for appellee.

PRICE, Justice:

This was an action for damages for personal injuries arising out of a collision between defendant's automobile and the plaintiff's bicycle. The plaintiff was a six-year-old boy, and the action was brought by his mother as natural guardian and next friend.

Judgment was for plaintiff, and defendant has appealed.

Highly summarized, the facts are substantially as follows:

At about six o'clock in the evening on July 8, 1961, the defendant, age seventy-two, was driving his car in a westerly direction on a street in the city of Pratt. It was a through street, protected by stop signs at intersecting streets. The weather was clear and the pavement was dry. Plaintiff had approached on his bicycle from the north and had stopped at the stop sign at the intersection with the street on which defendant was driving. There was no other traffic in the immediate vicinity, and there were no parked vehicles obstructing the view of either party. It appears that both of them entered and proceeded to go through the intersection at approximately the same time. The collision occurred in the intersection, and the point of impact was the left front portion of defendant's car and the left side of plaintiff's bicycle. There were several witnesses to the collision, and they had seen the plaintiff stopped on his bicycle at the stop sign at the north edge of the intersection. Defendant's testimony was to the effect that he did not see the plaintiff until the collision occurred.

After hearing all of the evidence, the jury returned a general verdict for plaintiff and also returned the following special findings:

'1. Do you find defendant, Ernest G. Welk, was confronted with a sudden emergency when he saw plaintiff coming south past the stop sign?

'Answer: Yes.

'2. If you answer the above question 'yes' state what, if anything, Ernest G. Welk could have done to avoid the collision other than to apply his brakes.

'Answer: Turn.

'3. State the speed at which Ernest G. Welk was traveling immediately prior to applying his brakes.

'Answer: 12-18 m. p. h.

'4. Do you find defendant's speed was reasonable and proper under the then existing circumstances?

'Answer: No.

'5. Do you find plaintiff minor came past the stop sign at a time when defendant's car was so close as to constitute an immediate hazard?

'Answer: Yes.

'6. Do you find defendant did everything a reasonable and prudent person could to avoid the collision?

'Answer: No.

'7. As the defendant, Ernest G. Welk, approached the intersection, do you find there was anything in the situation then existing that would require him to anticipate a minor riding a bicycle would proceed past the stop sign in question and into the intersection?

'Answer: Yes.'

Various post-trial motions were filed, including a motion for a new trial, all of which were overruled, and judgment was entered upon the verdict and special findings.

In his appeal defendant asserts thirteen specifications of error, but in his reply brief, and upon oral argument of the appeal, he candidly concedes that the decisive point in the case has to do with the question of instructions given and refused by the trial court.

It first is contended that insofar as defendant is concerned the collision was unavoidable, and therefore the trial court erred in refusing to give defendant's requested instruction on unavoidable accident.

The propriety of giving or refusing to give an instruction on 'unavoidable accident' has been involved in many recent decisions of this court. The question is thoroughly discussed in Knox v. Barnard, 181 Kan. 943, 951, 952, syllabi 3 and 4, 317 P.2d 452, and there is no need to repeat what was there said and held. To the same effect are: Schmid v. Eslick, 181 Kan. 997, 317 P.2d 459; Carlburg v. Wesley Hospital & Nurse Training School, 182 Kan. 634, 323 P.2d 638; Kreh v. Trinkle, 185 Kan. 329, 343 P.2d 213; Paph v. Tri-State Hotel Co., 188 Kan. 76, 360 P.2d 1055; Employers' Mutual Casualty Co. v. Martin, 189 Kan. 498, 370 P.2d 110, and Cagle Limestone Co. v. Kansas Power & Light Co., 190 Kan. 544, 376 P.2d 809.

Examining the record in this case, it is clear that in the very nature of things this collision could not have occurred...