Johnson v. Huskey

• Decision Date: 05 March 1960
• Docket Number: No. 41650,41650
• Citation: 350 P.2d 14,186 Kan. 282
• Parties: Archle V. JOHNSON, Administrator of the Estate of Dora Gile, Deceased, Appellee, v. Maynard E. HUSKEY, Appellant.
• Court: Kansas Supreme Court

Page 14

350 P.2d 14

186 Kan. 282

Archle V. JOHNSON, Administrator of the Estate of Dora Gile Deceased, Appellee, v. Maynard E. HUSKEY, Appellant.

No. 41650.

Supreme Court of Kansas.

March 5, 1960.

Syllabus by the Court

1. In an action under the guest statute (G.S.1949, 8-122b), evidence was sufficient to go to the jury upon the question of whether defendant was guilty of gross and wanton negligence when it tended to show that the defendant voluntarily drove 'at least eighty miles per hour' in the nighttime on a well-traveled highway after allowing himself to become intoxicated.

2. After proper foundation has been laid, witness so qualified as an expert may give his opinion as to the speed of an automobile involved in a collision, based upon the length of skid marks, damage and location of vehicles and distance traveled by them, and other circumstances existing at the scene of an accident (Foreman v. Heinz, 185 Kan. 715, 347 P.2d 451).

Horace A. Santry, Salina, argued the cause, and Joseph B. Crowther, Salina, was with him on the briefs, for appellant.

Arthur C. Hodgson, Lyons, argued the cause, and Raymond E. Haggart, Salina, was with him on the briefs, for appellee.

JACKSON, Justice.

The appellee brought an action in the court below under the provisions of the wrongful death act (G.S.Supp.1957, 60-3203) against the appellant alleging that appellant was responsible for the death of Dora Gile. After a trial before a jury, the district court approved a verdict in appellee's favor in the sum of $5,000, and rendered judgment thereon. Appellant seeks relief from the judgment by appeal to this court.

At the time of her death, Dora Gile was riding in an automobile driven by the defendant, and it is admitted by all parties that she occupied the status of a guest under the so-called guest statute (G.S.1949, 8-122b). The learned trial judge conducted a pretrial conference, and there were only a few questions left for the jury's decision and still fewer now raised upon this appeal.

The first contention made by the defendant before this court seems to be to the effect that the trial court erred in not sustaining defendant's motion for a directed verdict at the close of the evidence. The question so raised is whether or not the evidence produced at the trial was sufficient to go to the jury upon the issue of 'gross and wanton negligence' under the guest statute.

Defendant quite adequately states the rule which applies in testing evidence as to a motion for directed verdict by citing Thompson (Missouri Pacific R. Co.) v. Richards, 158 Kan. 178, 146 P.2d 359. We shall paragraphs the rule to fit this case as follows: If on all of the evidence adduced the admitted facts would compel a verdict in defendant's favor, the motion should have been sustained. If, however, the facts as shown by the evidence, when favorably considered, might reasonably be thought to show 'gross and wanton negligence' as those terms are defined, then the motion should be overruled and the case submitted to the jury. It is, of course, the same rule passed upon by a court upon a demurrer to the evidence.

The question is should the evidence be taken from the jury as a matter of law, or is there a question of fact to be decided by the jury?

We shall briefly recount the facts leading up to the fatal accident. Dora Gile lived in the small town of Marquette, and on the evening of April 14, 1956, she and several other young women procured a ride to Salina, where they attended a dance. At about midnight after the dance was over, the young women went to an eating place for hamburgers and coffee. One of the girls seems to have arranged for Dora Gile, Carolyn Kay Fruit and Carolyn's sister, Wanda Burger, to ride back to Marquette with defendant and two other young men. All of the young men were airmen stationed at Smoky Hill Air Base.

The party started out in defendant's car with defendant driving and one of the girls sitting beside him in the front seat. The two other couples were in the back seat. Defendant drove south on U. S. 81 and there can be no question but that he was driving fast. About three and one half miles south of Salina, defendant came up to two cars also proceeding south. He passed the first car by going out into the east lane of traffic and then came back to his own southbound lane, but he found that he was traveling too fast to slow down before hitting the second car which was going south as he was. He tried to go out around again, but saw another car coming north in the east lane and allowed his car to go over onto the east shoulder, then it crossed the ditch, went out into the field where it is shown the ground was soft. The car turned over at least twice and the body of Dora Gile was thrown thirty-eight feet beyond where the car came to rest.

Very shortly after the wreck, two troopers of the state highway patrol and a member of the air patrol from the air base were on the scene. Troopers Nelson and Smith and Airman Lassner all testified at the trial that they were conversant with the actions of and had dealt with intoxicated people; that in their opinion defendant was intoxicated, and explained his actions to the jury. A nurse at the hospital testified that she could tell that defendant had been drinking. Defendant consented to have a sample of his blood taken at the hospital. A proper test of defendant's blood showed a result of 0.275 per cent of alcohol by weight. At the trial, a competent physician testified that a test of 0.15 would be evidence of intoxication; that considering defendant's test showed 0.275, defendant was definitely under the influence of intoxicating liquor. The statute was not referred to in this case, but reference may be had to the provisions of G.S.Supp.1957, 8-1005 in comparing the authenticity of the above testimony.

Troopers Smith and Nelson testified about the scene of the accident. Trooper Nelson had been promoted to Lieutenant at the time of the trial. They examined the tire marks on the pavement, on the shoulder to the east, across the ditch and across the field. There were sixty-five feet of tire and stress marks on the pavement finally going off in an arc to the east. The testimony was that the car had traveled 380 feet from the time the brakes were applied on the pavement until it came to rest after turning over at least twice. Lieutenant Nelson, after stating facts which the court ruled were sufficient to qualify him, gave as his expert opinion that defendant was traveling 'at least' eighty miles per hour when he first applied his brakes behind the car in front of him on the pavement and found he could not slow down enough to avoid hitting the other car which was proceeding in the same direction. Defendant's objections to this opinion will be considered, infra, but upon the motion to direct a verdict in defendant's favor this evidence was a part of the case.

The terms 'gross and wanton negligence', as used in the guest statute, have been defined by many of our prior decisions. In Long v. Foley, 180 Kan. 83, at...