Hagood v. Hall

• Decision Date: 20 January 1973
• Docket Number: No. 46499,46499
• Citation: 211 Kan. 46,505 P.2d 736
• Parties: Christina HAGODD, Appellant, v. Donald E. HALL, Appellee.
• Court: Kansas Supreme Court

Page 736

505 P.2d 736

211 Kan. 46

Christina HAGODD, Appellant, v. Donald E. HALL, Appellee.

No. 46499.

Supreme Court of Kansas.

Jan. 20, 1973.

Syllabus by the Court

1. Instructions to the jury become the law of the particular case and are controlling on appeal unless they are objected to either directly or by requesting substitute instructions.

2. Where there is substantial positive evidence of negligence on the part of a decedent killed by accident, an instruction that he is presumed to have been exercising due care to avoid injury because of the normal instinct of self-preservation, should not be submitted to the jury.

3. The qualifications of an expert witness and the admissibility of his testimony are matters within the sound discretion of the trial judge, and unless the judge excludes the testimony he shall be deemed to have made the findings requisite to its admission.

4. A general verdict for defendant, without special questions, resolves all controverted issues of fact against plaintiff.

Forrest E. Short, of Short & Short, Fort Scott, argued the cause, and Joel B. , short, Fort Scott, was with him on the brief for appellant.

Douglas G. Hudson, of Hudson & Hudson, Fort Scott, argued the cause, and Douglas Hudson and David Mullies, Fort Scott, were with him on the brief for appellee.

FROMME, Justice:

This wrongful death action arose from a collision of two pickup trucks in an intersection in the city of Fort Scott, Kansas. The factual circumstances giving rise to the collision were presented in the district court and a jury brought in a general verdict in favor of the defendant, Donald E. Hall.

The plaintiff-appellant is the widow of John B. Hagood. Mr. Hagood, who died as a result of this collision, was one of the drivers. Both drivers were alone in their pickups. The collision occurred at First and Clark Streets.

The defendant, Hall, was driving a 1966 Dodge pickup truck. He approached the intersection from the north and was going south on Clark Street. At the trial he testified he had intended to cross First Street and continue straight south on Clark Street.

The deceased, John B. Hagood, was driving an old model GMC pickup truck. He approached the intersection from the west and was going east on First Street. First Street and Clark Street are both surfaced with bricks. There were no tire marks visible on the brick pavement after the collision to indicate that either driver attempted to turn or brake his vehicle prior to the collision. There were no traffic control signs to give either Hall or Hagood any preferential right-of-way. At this particular location the two city streets were being used as a detour for traffic through the city using U. S. Highway 54. Traffic from the north desiring to follow the detour turned west (to the right) at this intersection and traffic from the west desiring to follow the detour turned north (to the left) at this intersection.

There was a stop sign to control west bound traffic on First Street before it entered Clark Street and there was a stop sign to control north bound traffic on Clark Street before it entered First Street. It should be noted that these two stop signs did not control traffic into the intersection from the north or the west, the two collision courses of the vehicles in the present accident.

The point of impact was located after the collision by the chief of police as being in the southwest quadrant of the intersection. The principal damage to the Hagood vehicle was to the front end. The damage to the Hall vehicle was centered at the right front door. The investigating officer established the width of both streets at 30 feet. His measurements after the collision indicated that the Hall pickup traveled over 24 feet into the intersection before being struck by the Hagood pickup. The Hagood vehicle traveled 15 feet into the intersection before colliding with the Hall vehicle. After impact the Hall vehicle traveled 27 feet in a southeasterly direction and came to rest against a utility pole just across the curbing at the southeast corner of this intersection. The Hagood vehicle traveled 63 feet after impact in a south-southeasterly direction and came to rest against a tree some 36 feet past the Hall vehicle. After the collision Mr. Hagood was found unconscious on the ground to the south of the utility pole, some 30 feet from his pickup. He never regained consciousness.

In addition to the defendant there was one other witness to the collision. A Mr. Bunn testified he was driving immediately behind the Hall pickup, 'between a car length and a car-and-a-half behind him.' He further testified, '. . . I looked to see if there was anything coming on 1st Street, and just as I looked back towards Mr. Hall's vehicle, the collision happened. I didn't see the Hagood vehicle until after the accident happened, but it was going East on 1st Street. . . .' Mr. Bunn testified that the speed of Mr. Hall's vehicle as it approached the intersection was between 15 and i0 miles per hour, that the right turn indicator signal on the Hall vehicle was flashing and never stopped before the collision.

In contradicting the testimony of Mr. Bunn concerning the turn signal, Mr. Hall testified that the turn indicators on his pickup were in good working order, that the right indicator was not turned on prior to entering the intersection, and that the indicator was not flashing prior to the collision. He further testified he had no intention of turning his vehicle and was proceeding straight south through the intersection. He was almost through the intersection when his vehicle was struck in the side by the Hagood pickup. This conflict in the evidence raised a question as to the defendant's negligence which was resolved by the jury. They returned a general verdict in favor of defendant.

The chief of police investigated and took measurements at the scene of the accident. He testified concerning the measurements taken, the extent of damage to the respective vehicles, and the posted speed limit (30 miles per hour). In addition he was permitted to give his opinion as to the speed of the Hagood vehicle. He estimated the speed at 30 miles per hour but on cross-examination he said this was more or less an 'educated guess' and could be wrong by '5 miles an hour either way.'

During his investigation, which was conducted 15 or 20 minutes after the accident, he discovered '. . . the brake pedal (on the Hagood vehicle) would go clear to the floor and there was no feeling of resistance before it touched the floor, . . .' He said there were no effective brakes on the Hagood pickup when it was tested but he did not know when or how the brakes may have become inoperative.

With this evidentiary background we will now consider the points of error raised by plaintiff-appellant on appeal.

One of the court's instructions advised the jury that although Clark and First Streets may have been used as a detour for U. S. Highway 54 through the city of Fort Scott, such did not change the right-of-way laws of this state relating to city street intersections.

The plaintiff suggests this was error and argues that the intersection was an uncontrolled curve in U. S. Highway 54. On this questionable premise she contends that when defendant continued south on Clark Street he crossed over the dividing center line of the highway, into the opposite lane of traffic and, in effect, made a left turn off U. S. Highway 54. This argument presents several intriguing questions of logic, one of these being whether a motorist may be considered to have made a left turn when he has proceeded in a straight line down a city street. The appellant's reasoning leads her to a conclusion that the law governing traffic at street intersections in cities did not apply under the facts of this case and the giving of such an instruction was error.

Fortunately or unfortunately, it is unnecessary for this court to embroil itself into such abstruse or esoteric considerations. The record presented indicates that this argument was not made to the trial judge and no objection was lodged against the instruction in the court below. A party on appeal may not be heard to complain of an instruction given by the trial court to which no objection was made unless it is erroneous as a matter of law. (See 1 Hatcher's Kansas Digest (Rev.Ed.), Appeal and Error, § 344, for case citations.) Instructions to the jury become the law of the particular case and are controlling on appeal unless they are objected to either directly or by requesting substitute instructions. (Boucher v. Roberts, 187 Kan. 675, Syl. 1, 359 P.2d 830.) The instruction given by the court cannot be held erroneous as a matter of law under the facts of this case.

The appellant's second point also relates to the instructions. The appellant requested, and the trial court refused to give, an instruction to the effect that because of the instincts of self-preservation and love of life it is presumed that John B. Hagood was exercising ordinary care to avoid injury at the time of the collision and that this presumption was overcome only if the jury was persuaded by the evidence that the contrary was true. Error is claimed because of the court's refusal to give the instruction.

This court has long recognized a presumption of due care on the part of a decedent. See Long v. Foley, 180 Kan. 83, 299 P.2d 63, and the cases cited on page 91, 299 P.2d 63 of the reported case. However, it should be mentioned that many of the cases recognized the 'love of life' presumption came to this court from a ruling on a demurrer to plaintiff's evidence or a motion on behalf of plaintiff for a directed verdict before any controverting evidence could be adduced as to plaintiff's contributory negligence. In those cases the presumption was recognized as a means of supporting a prima facie case. See, e. g., In re Estate of Roth, 191 Kan. 493, 382 P.2d 320; Long v. Foley, supra; Henderson v....