Klaus v. Goetz
| Decision Date | 20 January 1973 |
| Docket Number | No. 46539,46539 |
| Citation | 211 Kan. 126,505 P.2d 726 |
| Parties | Alexander W. KLAUS, Appellee, v. Francis L. GOETZ, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. On appellate review, the verdict of a jury will not be disturbed if based upon substantial competent evidence.
2. Contributory negligence is generally a question of fact to be determined by the jury under the circumstances of each particular case.
3. A negative finding against the party who has the burden of proof in the trial of a case implies that he did not sustain the burden.
4. The violation of a private regulation of a landowner does not constitute negligence per se.
5. If jury instructions properly and fairly state the law as applied to the facts in the case when considered as a whole, and if the jury could not reasonably be misled by them, the instructions should be approved on appeal.
6. The words 'at all other places' in K.S.A. 8-555 refer to places on public highways with no traffic control signals, while the words 'or other place of safety' in K.S.A. 8-556(c) refer to places of safety on public highways other than curbs.
7. Any witness may explain his deposition testimony which has been taken without the benefit of court supervision or intervention.
8. The qualifications of an expert witness and the admissibility of his testimony are matters within the sound discretion of the trial court, and unless the trial judge excludes the testimony he shall be deemed to have made the findings requisite to its admission.
9. Issues not raised or determined in the trial court will not be considered on appeal for the first time.
Raymond Dahlberg, of Turner, Chartered, Great Bend, argued the cause and H. Lee Turner and Thomas C. Kelley, Great Bend, were on the brief for appellant.
Steven P. Flood, of Flood, Martin, Coffelt & Flood, Hays, argued the cause and was on the brief for appellee.
This is a damage action wherein Alexander W. Klaus (plaintiff-appellee) sustained injuries while playing football during the noon hour on October 28, 1966, in the senior parking lot at St. Joseph's Military Academy in Hays, Kansas, when he was struck by an automobile driven by Francis Goetz (defendant-appellant). The plaintiff recovered a verdict of $8,000 and the defendant has duly perfected an appeal.
Various trial errors are asserted on appeal for reversal of the judgment.
There was testimony that Goetz drove into the parking lot at approximately 12:30 P.M. when he returned to the academy, and in doing so drove into the football game and attempted to use his auto to block the play. Goetz, a senior, was told to leave and did so, going to the west end of the parking lot. The football players assumed he would park his car. Parking for senior students was available only on the south side of the parking lot, the north side being reserved for the faculty.
Testimony indicated the parking lot was not full and ample parking space was available.
Goetz did not park, however, but revved up his automobile's engine and then drove back toward the east along and very close to the faculty parking on the north side of the lot.
There was evidence that the speed of the Goetz automobile was 20-25 m. p. h. and that it was traveling in such a manner that it would have been in the wrong lane of traffic leaving the parking lot.
Goetz testified he saw Klaus only as a darting object out of the corner of his eye. Although Goetz applied the brakes leaving 45 feet of skid marks, his vehicle struck Klaus throwing him 30-35 feet in the air.
Goetz stated he could not turn his automobile to avoid the accident because he would have endangered the other football players.
Klaus was running to catch a pass and was looking back toward the play when the Goetz auto struck him.
Klaus suffered extensive head injuries from the collision and was hospitalized for several weeks. The jury impaneled to hear the case found in favor of Klaus and awarded a verdict of $8,000.
The appellant contends the trial court erred in failing to grant his motions for a directed verdict, dismissal and a new trial because the findings of the jury and the rulings of the court were not supported by the evidence, and for the further reason that the evidence shows the appellee to have been contributorily negligent and the appellant to have been free from negligence.
The appellant asserts the appellee was contributorily negligent in playing football in an area frequently traveled and crossed by motor vehicles; in looking back over his shoulder in a direction opposite to that in which he was traveling and in failing to keep a proper lookout.
The jury was asked to return a special verdict. The questions and the jury's answers were as follows:
'1. Do you find from a preponderance of evidence that at the time and place of the collision, the defendant Francis L. Goetz was negligent in a manner alleged in plaintiff's petition, which was a proximate cause of the collision?
'ANSWER: Yes
'(yes or no)
'2. If you answer the foregoing question 'yes', then state the act or acts of Francis L. Goetz that constituted such negligence.
'ANSWER: The driver did not keep his vehicle under such control that enabled him to regulate his speed to his ability to stop or turn aside.
'3. Do you find from a preponderance of evidence that at the time and place of the collision, the plaintiff Alexander W. Klaus was negligent in a manner alleged in the defendant's answer, which was a proximate cause of the collision?
'ANSWER: No
'(yes or no)
'4. If you answer the foregoing question 'yes,' then state the act or acts of Alexander W. Klaus that constituted such negligence.
'ANSWER: No
'5. If you answer question No. 1 'yes' and question No. 3 'no,' then please state the amount of damages you find for plaintiff by following instruction No. 21.
'$8,000.00.'
On appellate review the verdict of a jury will not be disturbed if based upon any substantial competent evidence. (Vannaman v. Caldwell, 207 Kan. 467, 485 P.2d 1373.)
A review of the record shows substantial competent evidence to sustain the findings of the jury. The appellant did not see the appellee until it was too late, although he was admittedly aware of the football players. Testimony showed he was revving his motor and driving at a rate of 20-25 m.p.h. By his own admission the appellant could not turn his vehicle aside without hitting other football players who were scattered all over the parking lot.
As for the appellee's alleged contributory negligence, this court has often repeated the rule that, 'Contributory negligence is generally a question of fact to be determined by the jury under the circumstances of each particular case and it is not a question of law to be determined by the court.' (Daugharthy v. Bennett, 207 Kan. 728, 732, 486 P.2d 845, 848, and cases cited therein.)
The jury specifically found no contributory negligence on the part of the appellee. Such a negative finding against the appellant who had the burden of proof implies that he did not sustain that burden. (Vannaman v. Caldwell, supra, Syl. 2.)
On the record presented we cannot say that appellee was guilty of contributory negligence as a matter of law.
The appellant contends the trial court erred in giving instructions Nos. 14, 16 and 17, and in refusing to give the appellant's requested instructions. The instructions challenged by the appellant read:
'It is undisputed that the place where this collision occurred was on private property and not on a public highway or street. Only such traffic laws of Kansas as are specifically applicable off the public highways are applicable at the place of collision. The owner of the real property where the collision occurred had the right to regulate the use and set up the conditions for the use of the property by persons permitted on the premises. Such owner also had the duty to inform persons permitted on the premises of such regulations and conditions. No person permitted on the premises had the right to assume that others on the premises would abide by or had knowledge of any such regulations and conditions set up by the owner of the premises.
'A pedestrian is any person afoot.
'There is no provision in the statutory laws of Kansas governing the conduct of a pedestrian at the time and place of the collision.
'The statutory laws of Kansas applicable at the place and time of the collision provide:
(a) That no person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions then existing. In every event speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle, or other conveyance in compliance with legal requirements and the duty of all persons to use due care.
(b) In addition the law provides that the driver of every vehicle shall drive at an appropriate reduced speed when special hazard exists with respect to pedestrians or other traffic.'
Instruction No. 14 was proper and necessary. The appellant contended the St. Joseph's Military Academy handbook, The Baton, permitted students to play ball only in assigned areas.
Unless the court adopts the proposition that private regulations of a landowner are presumed to be known to the public, to the same extent as public statutes, the instruction was necessary to clearly state the law to the jury. There is no evidence in the record to show the appellee actually knew he was not to play football in the parking lot.
The violation of a private regulation does not constitute negligence per se. Instruction No. 14...
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