Kettler v. Phillips

• Decision Date: 08 June 1963
• Docket Number: No. 43240,43240
• Citation: 191 Kan. 486,382 P.2d 478
• Parties: Delton E. KETTLER, Appellee, v. Albert W. PHILLIPS, Appellee, and Frank C. James, Appellant.
• Court: Kansas Supreme Court

Page 478

382 P.2d 478

191 Kan. 486

Delton E. KETTLER, Appellee, v. Albert W. PHILLIPS, Appellee and Frank C. James, Appellant.

No. 43240.

Supreme Court of Kansas.

June 8, 1963.

Rehearing Denied July 10, 1963.

Syllabus by the Court.

1. The record in an action to recover damages against two alleged joint tortfeasors examined and held that, under the facts, conditions and circumstances set forth in the opinion, the trial court did not err: (1) In restricting the testimony; (2) In refusing to give the instructions requested by one codefendant; (3) In refusing to set aside the verdict of the jury for the reason that the amount of the verdict was excessive; (4) In overruling the motion for judgment notwithstanding the verdict; (5) In overruling the motion for a new trial.

2. An objection to an instruction allegedly favoring a codefendant will not be reviewed where no objection was made in the court below to, and no appeal was taken from, the verdict and judgment in favor of the codefendant.

James W. Sloan and Jerry W. Hannah, Topeka, argued the cause, and Eldon Sloan, Myron L. Listrom, Clayton M. Davis, and Mark L. Bennett, Topeka, were with him on the briefs for appellant.

T. M. Murrell, Topeka, argued the cause, and George A. Scott and Jack A. Quinlan, Topeka, were with him on the briefs for appellee Delton E. Kettler.

Philip H. Lewis, Topeka, argued the cause, and O. B. Eidson, James W. Porter, E. Gene McKinney, and Charles S. Fisher, Jr., Topeka, were with him on the briefs for appellee Albert W. Phillips.

HATCHER, Commissioner.

This appeal stems from an action brought against the drivers of two automobiles whose alleged concurrent negligence caused injury to a third.

The general facts, which are not in serious dispute, may be summarized.

The collision occurred at approximately 3:30 P.M., October 29, 1960, on Highway K68 at the Bull Creek Bridge north and west of Paola, Kansas. Highway K68, designated as black top surface, is twentytwo feet in width. Bull Creek Bridge is fifteen feet, four inches in width, one hundred feet long and is posted as a one-lane bridge. There were rails protecting the approach which narrowed from the width of the highway to the width of the bridge. The highway was wet as the result of a recent rain.

The defendant, Frank C. James, was driving in a westerly direction and entered the bridge from the east without slackening his speed. He attempted to slow down but missed his foot brake. The defendant, Albert W. Phillips, was driving in an easterly direction and approached the bridge from the west. The plaintiff, Delton E. Kettler, was driving some distance behind the Phillips automobile. Phillips applied his brakes and approached or entered the approach to the bridge at a very slow speed. As James approached Phillips automobile, he swerved his automobile to the right striking a guard rail. This caused his automobile to skid to the left and collide with the Phillips automobile. This occurred about twenty-six feet from the west end of the bridge. At this point James lost control of his automobile which traveled some two hundred feet down the road where it collided with the automobile being driven by Kettler. Kettler had pulled onto the right-hand shoulder of the highway and had come to a stop.

Following a trial of the issues the jury returned a verdict in favor of the plaintiff and against the defendant James in the amount of Twenty-Three Thousand, Two Hundred and Fifty Dollars. It also returned a verdict in favor of the defendant Phillips for his costs.

The defendant James filed motions for judgment notwithstanding the verdict, to set aside findings of the jury, and for a new trial. The motions were overruled and James has appealed specifying numerous trial errors.

Appellant first claims error because of the trial court's refusal to permit witness Pivonca, a state trooper, to give his opinion as to whether the point of impact between the automobiles of James and Phillips occurred within the one-lane area.

The objection is without merit. The witness testified as to the width of the bridge; that the point of impact of the Phillips and James automobiles was twenty-six feet west of the west end of the bridge; that the roadway at the point of impact was eighteen feet wide, and that there was nothing to indicate that the Phillips automobile had crossed the center line of the road.

Any opinion of the witness as to whether Phillips' automobile had entered the onelane area could be nothing more than an opinion dealing with a question which was for the jury's determination--was Phillips negligent in entering the approach to the one-lane bridge?

The appellant complains of the refusal of the trial court to give requested instructions. One request was as follows:

'You are instructed that for traffic control purposes, the term 'bridge' includes not only the structure spanning a river, creek or ravine, but also includes approaches by which access to the bridge is obtained. Such approaches being as much a part of the appendages to the bridge as the bridge itself.'

Appellant cites authorities defining the term 'bridge' as including the approaches. There may be situations in which the approaches should be considered as a part of the bridge. Liability for improper construction, maintenance or repair would present fair examples. However, a wide approach is not necessarily part of a narrow one-lane bridge when considering whether the driver of an automobile negligently entered a one-lane area.

One of the questions for the jury's consideration was whether appellee Phillips entered or approached too close to the one-lane area. Any instruction that included all of the approach as part of the narrow bridge would have confused the jury on the issue.

An instruction, although correct, should not be given on issues not involved in the lawsuit. (Randle v. Kansas Turnpike Authority, 181 Kan. 416, 312 P.2d 235.)

Other instructions requested by the appellant were sufficiently covered by the instructions given. A court should not single out a particular theory or circumstance and give it undue emphasis, even though the requested instruction correctly states the law. Requested instructions are properly refused where the substance is contained in the instructions given. Kurdziel Van Es, 180 Kan. 627, 306 P.2d 159; Collingwood v. Kansas Turnpike Authority, 181 Kan. 43, 310 P.2d 211, on rehearing 181 Kan. 838, 317 P.2d 400; Board of Park Commissioners v. Fitch, 184 Kan. 508, 337 P.2d 1034; City of Wichita v. Depee, 185 Kan. 22, 340 P.2d 924; Millers' Nat. Ins. Co., Chicago, Ill. v. Wichita Flour Mills Co., 10 Cir., 257 F.2d 93, 76 A.L.R.2d 385; Williams v. Hendrickson, 189 Kan. 673, 371 P.2d 188; Goldman v. Bennett, 189 Kan. 681, 371 P.2d 108.

The appellant contends that the jury's answer to special questions acquitted him of all negligence charged in the petition.

The petition contained allegations of failure to exercise due care, failure to have automobile under control, and failure to slow down. The jury in answering the question as of what the negligence consisted, stated:

'Negligent carelessness. Failing to drive at a speed safely required for protection of interest of other persons which may cause injury.'

We can find very little distinction between the phrase 'failure to slow down' and 'failure to drive at a speed safely [safety] requires'. The rule of consistency, in the negligence charged in the petition and the negligence found by the jury, does not require that the same adjectives, adverbs, or phrases be used. The rule is satisfied if the language used is reasonably synonymous.

'* * * a jury of laymen is not required to answer special questions in the precise language used by a lawyer in drafting a pleading * * *.' (Spencer v. Martin K. Eby Construction Co., 186 Kan. 345, 350, 350 P.2d 18, 22. See, also, Moorhouse v. Robins, 145 Kan. 157, 64 P.2d 5, and Jacobs v. Hobson, 148 Kan. 107, 79 P.2d 861.)

The appellant claims error because of misconduct of the jury. It appears that one of the jurors referred to a dictionary while at home overnight during the jury's deliberations. He 'looked up' several definitions, including the word negligence, and made notes. He read the notes to the other jurors after they had reached a verdict but before they retired from the jury room. He did not know whether the foreman used his notes in writing the answers to special questions. He followed the court's instructions as to the definition of the word 'negligence'.

The record does not establish with any definiteness that the dictionary definition was used in arriving at a verdict. The most that can be said is that the dictionary definition might have influenced the jury. This is not sufficient to satisfy the rule that a judgment will not be reversed unless it appears that substantial rights of the complaining party have been prejudiced.

The juror used 'Webster's Dictionary', 'a regular school dictionary'. The definition which the juror copied is not disclosed by the record. However, the definition of the word negligence as found in Webster's New Twentieth Century Dictionary Unabridged contains nothing which would be inconsistent with the definition as set forth in the court's instructions.

The question is governed by the decision of this Court in the case of Pulkrabek v. Lampe, 179 Kan. 204, 293 P.2d 998, 54 A.L.R.2d 732. The court stated in the opinion:

'Once the true rule for determining whether the trial court properly concluded the misconduct complained of did not...