Jefferson v. Clark

• Decision Date: 08 December 1962
• Docket Number: No. 42903,42903
• Parties: C. F. JEFFERSON, Appellant, v. Charles CLARK, Appellee.
• Court: Kansas Supreme Court

Page 923

376 P.2d 923

190 Kan. 520

C. F. JEFFERSON, Appellant, v. Charles CLARK, Appellee.

No. 42903.

Supreme Court of Kansas.

Dec. 8, 1962.

Syllabus by the Court

In a review of a trial involving an automobile collision, the instructions covering contributory negligence and proximate cause are examined and are found to be erroneous as containing what has become known as a 'but for' instruction which technically does not state the rule as to proximate causation. It is held that the trial court should grant a new trial.

The instruction covering maximum legal speed is also found to need correction.

Donald R. Newkirk, Wichita, argued the cause and Wayne Coulson, Paul R. Kitch, Wichita, 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 briefs for appellant. Hugo T. Wedell and Homer V. Gooing, Wichita, of counsel.

Robert M. Bond, El Dorado, argued the cause and L. J. Bond, El Dorado, was with him on the briefs for appellee.

JACKSON, Justice.

This appeal concerns an automobile collision which occurred at about 12:15 p. m. on Sunday, September 21, 1958 when plaintiff-appellant was driving a 1955 Oldsmobile east on Central Avenue in Wichita and defendant-appellee was driving a 1958 Ford from the south into the intersection of Central Avenue and Rock Road.

Central Avenue is a through street and there were stop signs on Rock Road cautioning defendant to stop before entering the intersection. Defendant testified that he had stopped for the intersection, when he observed a car coming at a rapid rate; that he stopped as quickly as he was able. His front end extended some two or more feet into the intersection.

Plaintiff estimated that he was driving between thirty-five and forty miles per hour. The speed limit on Central Avenue was thirty-five miles per hour. Plaintiff observed defendant as he approached the intersection; he apparently was going to stop for the stop sign; that plaintiff looked to the road to the north and saw no other car, glanced to the front again and saw defendant in the intersection or almost in it. Plaintiff tried to stop or turn to the left but had no time; that the collision occurred and plaintiff's car went forward to the north and finally turned over.

Plaintiff's petition asked for damages based on injuries to the person of the plaintiff and included nothing for injury to his car. He later endeavored to amend and include damages to his car but the trial court sustained defendant's objections to the amendment. This will be discussed later.

The case was tried to a jury which was instructed by the court and which brought in a verdict for the plaintiff in the amount of $5,000 and answered the following special questions.

'1. What was the speed of plaintiff as he approached the intersection of Rock Road and Central Avenue?

'Answer: In excess of 40 miles an hour

'2. Where was the automobile, being driven by the defendant, when first seen by the plaintiff, C. F. Jefferson?

'Answer: Approaching the stop sign on Rock Road slowing to stop.

'3. Do you find from the evidence that plaintiff was under the influence of intoxicating liquor at the time of the accident?

'Answer: No.

'4. Was the plaintiff guilty of negligence which contributed as a direct and proximate cause of the accident and his injuries?

'Answer: Yes.

'If so, state the acts of negligence: exceeding the speed limit.

'5. Was the defendant guilty of negligence which was a direct and proximate cause of the accident and plaintiff's injuries?

'Answer: Yes.

'If so, state the acts of negligence: Failed to yield after stopping.'

Plaintiff moved to set aside the answer to question 4 on the ground that the negligence found was not as a matter of law the proximate cause of the accident and if this motion were not granted, plaintiff moved for a new trial.

The defendant moved for judgment on the special interrogatories notwithstanding the general verdict.

When the post-trial motions of both parties came on for hearing, the trial court overruled both of plaintiff's motions and granted defendant judgment on the special findings notwithstanding the general verdict. Plaintiff promptly appealed to this court and urges that his motions should have been granted.

We note that the first specification of error by the plaintiff is as follows:

'1. The trial court erred in giving instruction No. 24 (which stated the 'but for' contributory negligence rule), because it was in direct conflict with instruction No. 25 (which correctly stated the Kansas contributory negligence rule), was an incorrect statement of the law and was misleading.'

We do find that instruction No. 24 seems to be a 'but for' instruction and does not state the rule of this jurisdiction as to contributory negligence. In Townsend, Administrator v. Jones, 183 Kan. 543, at page 554, 331 P.2d 890, it is said:

'It is argued that if the defendant had been driving his vehicle at the legal rate of speed, the decedent would have had time to cross the highway without being struck. This simply says that but for the fact that the defendant was speeding the accident would not have happened.

"But for' causation is not the test of liability in a negligence case. There must be more, the negligence must be the proximate cause and before a plaintiff can recover he must be free of negligence which contributed to the accident.'

And see discussion in 65 C.J.S. Negligence § 106, p. 656, where it is said in part as follows:

'On the other hand, while that without which the injury would not have occurred is sometimes regarded as the proximate cause, strictly speaking, the two should not be confused, and the mere fact that the injury would not have occurred but for the negligence charged does not necessarily make such negligence the proximate or legal cause of the injury or a substantial factor in bringing about the injury. So, although the negligent act may have been the cause of one injury, it will not be considered the proximate cause of another injury merely because it caused or may have caused conditions which contributed to the second injury, and but for whose existence the second injury might not have happened. In order to impose liability, the negligence charged must be the causa causans, or the cause which...