Herrington v. Pechin

• Decision Date: 04 March 1967
• Docket Number: No. 44687,44687
• Parties: Sandra HERRINGTON, a minor by James B. Herrington, her father, natural guardian, and next friend, Appellant, v. Irene M. PECHIN, Appellee.
• Court: Kansas Supreme Court

Page 624

424 P.2d 624

198 Kan. 431

Sandra HERRINGTON, a minor by James B. Herrington, her father, natural guardian, and next friend, Appellant, v. Irene M. PECHIN, Appellee.

No. 44687.

Supreme Court of Kansas.

March 4, 1967.

Syllabus by the Court

1. A claim of 'sudden emergency' is not an avoidance or affirmative defense but a denial of negligence and when the pleadings disclose that there was a mutual denial of negligence, the issue of sudden emergency is in the case without an affirmative allegation.

2. If evidence relating to an affirmative defense is introduced without objection and the opposite party is not surprised and has ample opportunity to meet the issue, the defense may be permitted even though it has not been pleaded.

3. This court has been increasingly critical of the practice of giving instructions on unavoidable accident.

4. The record in an action by a minor struck by an automobile while crossing a heavily traveled road is examined and it is held, there was no prejudicial error in the giving of instructions or the submission of special interrogatories, there was substantial evidence to support the verdict and there was no error which would justify the granting of a new trial.

Otto J. Koerner, Wichita, argued the cause and was on briefs for appellant.

Albert L. Kamas, Wichita, argued the cause, and Richard A. Render, Ronald L. Nicto and Kenneth H. Hiebsch, Wichita, were with him on briefs for appellee.

HATCHER, Commissioner.

This is an appeal from a verdict and judgment adverse to plaintiff in an action for damages for injury to a pedestrian struck by an automobile.

A careful presentation of the facts will tend to dispose of most of the issues presented here.

The collision between the automobile and the pedestrian occurred near 2320 McArthur Road in Wichita, Kansas. McArthur Road runs east and west and is twenty-two feet in width with an asphalt surface. It is the road which the Boeing Airplane Company employees take from the plant to the main thoroughfares of the city of Wichita. The speed limit is forty miles per hour. At the point of the collision there is a large trailer court on the north side of the road and to the south are two farm houses. Between 4:30 and 5:00 o'clock P.M. the traffic going west toward Wichita travels bumper to bumper.

Sandra Herrington, the plaintiff, a girl thirteen years and ten months of age, lived with her parents in the trailer court. On November 20, 1961, at approximately 4:30 o'clock P.M. Sandra's mother gave her an egg carton, a five dollar bill and asked her to get some eggs from one of the farm houses across McArthur Road. As she approached the road she stopped because the traffic going west on the north lane was very heavy. She testified that after she had waited 5 to 10 minutes a man in an old pickup truck stopped--

'A. He waived me across like this to go on across the road and I started.

'Q. All right. Before you started did you look toward Hydraulic (west) at all?

'A. No sir.

'Q. Why didn't you?

'A. Because I depending (sic) on his vision to Hydraulic because the cars were bumper to bumper and I couldn't see over them.'

She remembers starting across the road but from that time her mind was a blank until she regained consciousness some three months later.

The driver of the truck mentioned in plaintiff's testimony testified for the defendant. He and the defendant were the only eye witnesses to the impact of the collision. He testified the traffic on McArthur Road was bumper to bumper moving no faster than second gear and most of the time in low gear. We quote what he observed:

'A. Well, the best I can judge and remember I saw this little girl probably up two cars from me in the driveway, an she didn't seem like she wanted to cross, didn't pay too much attention to the traffic. She was just standing there. And then we moved up, and there was a pickup right in front of me. I don't remember, it was a late model Ford of some kind. * * *

'A. All at once she started to cross the street in a full run. She went across in front of me. And at the same instance she went across the white line is when the Renault picked her up. I didn't know at that time, couldn't tell where she was hit or anything. * * *' At the time the little girl started across McArthur Road he was moving in second gear. She ran close to the back end of the pickup in front of him.

On cross-examination he denied waiving the plaintiff across the street. Again we quote:

'Q. Do you remember whether you motioned her across?

'A. No, not in that kind of traffic.'

The defendant testified that she was driving east on McArthur Road with her two small children to pick up her husband who got off work at the Boeing plant at 5:00 o'clock P.M. The traffic on the north lane going west was very heavy-traveling bumper to bumper. The traffic on the south lane going east was very light. She further testified:

'A. Well, I was going east and I wasn't even doing 40 miles an hour and I was very cautious of this because I had recently gotten my license and I always drove within the speed limit. And as I was going-let's see, I was going east, and this girl just ran right from behind a car. I could not see her until I was right on top of her, and it seemed like she was about two or three feet in front of me, but I couldn't swear to it. She was just there.

'Q. What did you do?

'A. Well, I thought I had slammed on my brakes but apparently I hadn't. It seemed like I was just panicked and I went to put my brakes on and I didn't have time to do either that or swerve.'

In her traffic accident report defendant had stated that she stopped as soon as she could.

The plaintiff produced as a witness a safety engineer whose calculations would fix the speed of defendant's automobile based on its distance from the point of impact at greater than 40 miles per hour. However, he testified he did not know whether she put the brakes on or slid a wheel and that would make a difference in his calculations. The traffic regulations of the city of Wichita fixed the speed limit on McArthur Road at 40 miles per hour.

Under the facts as above narrated the jury returned a verdict in favor of the defendant and answered special questions in which it found that the defendant was not guilty of negligence which was the proximate cause of the accident but that the plaintiff, by running across the street without due regard, was guilty of contributory negligence...