Kleibrink v. Missouri-Kansas-Texas R. Co., Inc.

• Decision Date: 15 July 1978
• Docket Number: No. 48818,MISSOURI-KANSAS-TEXAS,48818
• Citation: 581 P.2d 372,224 Kan. 437
• Parties: Ann KLEIBRINK, and Beth Anne Kleibrink, a minor, by her mother and next friend, Ann Kleibrink, Appellees, v.RAILROAD COMPANY, INC., Appellant.
• Court: Kansas Supreme Court

Page 372

581 P.2d 372

224 Kan. 437

Ann KLEIBRINK, and Beth Anne Kleibrink, a minor, by her mother and next friend, Ann Kleibrink, Appellees, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, INC., Appellant.

No. 48818.

Supreme Court of Kansas.

July 15, 1978.

Syllabus by the Court

1. In an automobile accident negligence case, an expert witness, whether an investigating police officer or other expert, may not state his opinion as to which of the parties was at fault in causing the accident or his opinion concerning what acts of the parties contributed to the accident.

2. A verdict or finding of a jury cannot be disturbed by the court on appeal if there is substantial competent evidence in the record to support it.

3. As a general rule a pretrial order entered by the trial court pursuant to K.S.A. 60-216, controls the subsequent course of action unless such order is modified at the trial to prevent manifest injustice.

4. Where the pretrial order frames the issues to be tried, and the order is not modified, the court may, and should, refuse any request for an instruction which is inconsistent with the order or which is not within the scope of the issues stated in the order.

5. The refusal by the trial court to give a requested instruction does not result in reversible error when the substance of the instruction is contained in other instructions.

6. The fact that a requested instruction is technically a correct statement of the law does not make the trial court's refusal to give the instruction reversible error.

7. Remarks of counsel are reversible error when, because of them, the parties have not had a fair trial.

8. An increase, decrease or repeal of the statutory maximum recoverable in wrongful death actions is not retroactive.

9. In an action for wrongful death it is held that deaths occurring during the one year period subsequent to the effective date of the Comparative Negligence Act of July 1, 1974, but prior to the effective date of the wrongful death amendment of July 1, 1975, are governed by comparative negligence and a $50,000 limitation upon recovery, to be applied by the court after the jury determines the plaintiff's damages.

John B. Markham, Parsons, argued the cause and was on the brief for the appellant.

Charles F. Forsyth, Erie, argued the cause, and was on the brief for the appellees.

SCHROEDER, Chief Justice:

This is an appeal from an action to recover for the wrongful death of plaintiffs-appellees' decedent, Royal Edward Kleibrink, who was killed when his car collided with a train owned and operated by the Missouri-Kansas-Texas Railroad Company, Inc., defendant-appellant. The case was tried under our new comparative negligence statute. The jury found the railroad 100 percent negligent and awarded damages in the amount of $101,807.

The appellant asserts the trial court erred in limiting opinion testimony by its expert witness; in denying its requested instructions; and in refusing to reduce the damages to $50,000 plus funeral expenses as the limit for wrongful death. It also complains of misconduct by opposing counsel in his closing argument and challenges the sufficiency of the evidence.

The accident occurred on July 24, 1974, at approximately 9:20 p. m. at a public crossing just west of Stark, Kansas. The railroad track is straight and level at the crossing, and State Highway 201 dips slightly before its intersection with the tracks. The railroad maintained crossbucks on each side of the track and posted a warning sign 450 feet west of the crossing.

The evening of the accident was clear, and witnesses stated it was just dusk when the crash was heard. The decedent was going to his job as plant supervisor at the Stark Grain Elevator a very short distance beyond the railroad crossing. His car was traveling in an easterly direction on highway 201 as it approached the intersection with the railroad crossing. The appellant's train, consisting of four diesel engines, 139 tank cars and a caboose, was approaching from the south to the decedent's right at a speed of 38 miles per hour as shown by the train's speed tape and the engineer's testimony. The decedent's car struck the appellant's lead engine and was pushed 1,078 feet north up the track. There were no skidmarks on the pavement. The car was completely demolished, and the decedent was killed instantly.

The main controversy between the parties with respect to comparative negligence deals with allegations the appellant (1) failed to blow its whistle; (2) failed to keep the crossing free from obstruction to vision; and (3) failed to have the crossing properly marked it had no crossing gate or flashing signals. The only eyewitnesses to the collision were the appellant's brakeman and engineer. W. L. McKain, the head brakeman, was seated in the lead engine in a position in which he was able to see in all directions. He testified he first observed the decedent's car as it was coming over a hill on the highway approximately seven-eighths of a mile from the crossing. He estimated it was traveling at least 50 miles per hour. He stated he then signaled the engineer to blow the whistle and continued to watch the car as it came east until it slowed to approximately 25 miles per hour before the crossing.

Richard Mullinax, the engineer, testified he began blowing the whistle before the Stark crossing post when he noticed the decedent's car traveling at an excessive rate of speed. He whistled continuously using the short blast method in order to get the driver's attention. When he realized the car was not going to stop he placed the train in emergency but continued to blow the whistle. He further stated the bell and the headlight of the train were on.

Numerous witnesses for the appellees, on the other hand, testified they heard no train whistle until immediately after the crash. The appellees also introduced testimony that weeds, brush, and trees obstructed the vision of a motorist approaching the crossing from the west as to trains approaching from the south. They claimed the crossing was more than ordinarily dangerous due to the appellant's negligence in maintaining it as required by law.

The appellant moved for a directed verdict at the end of the appellees' case and at the close of all the evidence. These motions were denied, the case was submitted to the jury, and the appellant has duly perfected this appeal.

At the outset the appellees ask this court to dismiss the appeal claiming the trial court had no jurisdiction to extend the time for filing the designation of the record, or in the alternative, abused its discretion by allowing the appellant to file such designation more than six months out of time. This argument lacks merit.

Supreme Court Rule No. 6(P ), 214 Kan. xxv, in effect when this case was tried, states the provisions for delays and extensions of time when the appellant is docketing an appeal. Our court has never favored denying an appeal on technical procedural grounds. (See Crouch v. Marrs,199 Kan. 387, 388, 430 P.2d 204 (1967).) Admittedly, the appellant was not in conformity with the rules, but inherent in the trial court's ruling was a finding of excusable neglect. (Franklin v. Northwest Drilling Co., Inc., 215 Kan. 304, 307, 524 P.2d 1194 (1974); Almquist v. Almquist, 214 Kan. 788, 794, 522 P.2d 383 (1974); Van Brunt, Executrix v. Jackson, 212 Kan. 621, 625, 512 P.2d 517 (1973); See also Cribbs v. Pacific Intermountain Express,208 Kan. 813, 494 P.2d 1142 (1972).) Absent a showing of abuse of discretion, the trial court's order will not be disturbed. (Van Brunt, Executrix v. Jackson, supra, 212 Kan. at 625, 512 P.2d 517.) Here no abuse of the exercise of the trial court's power of discretion has been shown.

The appellant first contends it was improper to deny the testimony of Clifford Haslett, a Kansas Highway Patrolman, that the decedent's inattentive driving contributed to his death. It relies on the cases of Ziegler v. Crofoot, 213 Kan. 480, 516 P.2d 954 (1973); and Massoni v. State Highway Commission, 214 Kan. 844, 522 P.2d 973 (1974) to support this argument. This issue is controlled by our recent decision of Lollis v. Superior Sales Co., 224 Kan. 251, 580 P.2d 423, where we overruled language in Ziegler and Massoni and held:

"In an automobile accident negligence case, an expert witness, whether an investigating police officer or other expert, may not state his opinion as to which of the parties was at fault in causing the accident or his opinion concerning what acts of the parties contributed to the accident. . . ." (Syl. 3.)

Thus, no error exists in the exclusion of the testimony.

The appellant next contends the jury verdict is not supported by the evidence. Specifically it contends the jury ignored and did not consider the evidence given by its eyewitnesses that the decedent was guilty of negligence in driving in front of the train, which was a proximate cause of his death.

We have often stated a verdict or finding of a jury cannot be disturbed by the court on appeal if there is substantial competent evidence in the record to support it. (Dold v. Sherow, 220 Kan. 350, 356, 552 P.2d 945 (1976); Carnegie v. Gage Furniture, Inc., 217 Kan. 564, 538 P.2d 659 (1975); and Hallett v. Stone, 216 Kan. 568, 534 P.2d 232 (1975).) Similarly when a verdict is attacked on the ground that it is contrary to the evidence, it is not the function of the Supreme Court to weigh the evidence or to pass upon the credibility of the witnesses. The court is concerned only with the evidence and all reasonable inferences to be drawn therefrom which support the verdict, and it is of no consequence that there may have been evidence which, if believed, would have supported a different verdict. (Farmers Ins. Exchange v. Schropp, 222 Kan. 612, 620, 567 P.2d 1359 (1977) and cases cited therein; Essmiller v. Southwestern Bell Tel. Co., 215 Kan. 74, 80, 524 P.2d 767 (1974); Montgomery v. Morgenson, 213 Kan. 167, 515 P.2d 746 (1973); ...