Knox v. Barnard, s. 40606

• Decision Date: 09 November 1957
• Docket Number: 40616,Nos. 40606,s. 40606
• Citation: 317 P.2d 452,181 Kan. 943
• Parties: Mary Lorraine KNOX, Appellee, v. Roy A. BARNARD, Defendant, and Joe Evans, Appellant. Mary Lorraine KNOX, Appellee, v. Roy A. BARNARD, Appellant, and Joe EVANS, Defendant.
• Court: Kansas Supreme Court

Page 452

317 P.2d 452

181 Kan. 943

Mary Lorraine KNOX, Appellee, v. Roy A. BARNARD, Defendant, and Joe Evans, Appellant.

Mary Lorraine KNOX, Appellee, v. Roy A. BARNARD, Appellant, and Joe EVANS, Defendant.

Nos. 40606, 40616.

Supreme Court of Kansas.

Nov. 9, 1957.

Syllabus by the Court.

1. Where concurrent negligent acts of joint tort-feasors contribute to bring injury to a third party, the degree of their respective culpability is immaterial.

2. It is the duty of a trial court to instruct on the law applicable to the theorites of both parties so far as they are supported by evidence.

3. Generally speaking, as applied to automobile negligence cases, the term 'unavoidable accident' excludes and repels the idea of negligence, and refers to one which is not occasioned in any degree, either directly or remotely, by the want of such care or prudence as the law holds every person bound to exercise--that is, an occurrence which is not contributed to by the negligent act or omission of either party. In one sense, the term is synonymous with 'mere accident' or 'pure accident,' which imply that the accident was caused by some unforeseen and unavoidable event over which neither party had control.

4. Generally, speaking, when an accident is caused by negligence there is no room for application of the doctrine of 'unavoidable accident,' even though the accident may have been 'inevitable' or 'unavoidable' at the time of its occurrence, and one is not entitled to the protection of the doctrine if his negligence has created, brought about, or failed to remedy a dangerous condition resulting in a situation where the accident is thus 'inevitable' or 'unavoidable' at the time of its occurrence. In other words, a person is liable for the combined consequences of an 'inevitable' or 'unavoidable ' accident and his own negligence.

5. In an action against joint tortfeasors to recover for the wrongful death of plaintiff's decedent resulting from a highway collision, the facts were as follow: Defendant E was proceeding east on the highway which was slippery from ice and snow. Defendant B was following him in a truck loaded with cattle. E, seeing the car in which decedent was a passenger approaching from the opposite direction and being fearful of meeting and passing it on a bridge, slowed down and came to a normal stop in his right traffic lane immediately west of the bridge. In the meantime, B, observing that E was slowing down and eventually stopped, attempted to stop his truck so as to avoid a rear-end collision with E's car. In doing so his truck went out of control and swerved into the left traffic lane and collided with the westbound car which, in the meantime, had crossed the bridge and was in its right traffic lane. Plaintiff recovered against both defendants and each appealed. The record is examined and, all as more fully set forth in the opinion, it is held: Defendant E's demurrer to plaintiff's evidence was properly overruled and as to such defendant the case was properly submitted to the jury. Further held: Defendant B's request for an instruction on unavoidable accident was properly denied.

Rowland Edwards, Waterville, argued the cause, and W. M. Beall, Clay Center, was with him on the briefs for appellant Roy A. Barnard.

Lyle C. Holland, Lincoln, Neb., argued the cause, and Robert E. Ferguson, Marysville, was with him on the briefs for appellant Joe Evans.

Richard W. Mason, St. Joseph, Mo., argued the cause, and Robert F. Galloway, Marysville, was with him on the briefs for appellee.

PRICE, Justice.

This was an action to recover for the wrongful death of plaintiff's husband alleged to have been caused by the concurrent negligence of two defendants. The trial resulted in a verdict and judgment for plaintiff in the sum of $22,500 against both defendants. Each defendant has appealed and the appeals were consolidated in this court.

Before discussing the pleadings and the specific evidence introduced, it is considered advisable to set out a brief recital of the over-all situation immediately prior to and at the instant of the collision resulting in the death of decedent.

On the morning of January 17, 1956, defendant Barnard left his farm near Beatrice, Nebraska, in his 1953 two-ton Ford truck with a load of nine cattle, weighing approximately 9,000 pounds. His truck weighed about 8,000 pounds. His destination was St. Joseph, Missouri. Upon reaching Marysville he headed east on U.S. Highway 36. The weather was cold and clear and there was snow and ice on the highway. About twenty miles east of Marysville he reached the top of a long grade. East, ahead of him, was a long downhill grade at the bottom of which was a concrete bridge some 1,376 feet distant. The highway was level for a stretch of about 300 feet west of the bridge. East of the bridge the highway was level for about 500 feet and then started uphill, the brow of which was about 1,730 feet east of the bridge. The width of the bridge, for travel purposes, was twenty feet three inches, and it was 100 feet long. The highway was of blacktop construction and was twenty-nine feet seven inches wide west of the bridge and thirty feet one inch wide east of the bridge. The shoulders were narrow and insufficient for a car to drive onto.

As Barnard proceeded east down the grade in question he notice defendant Evans' Ford car about 200 feet ahead of him, also proceeding east. Barnard started moving down the grade in low-high gear, and as he proceeded he gained distance on the Evans car. When almost down the grade he noticed the rear brake lights flash on the Evans car, which was then about 150 feet ahead of him. He then, for the first time, noticed a car approaching from the opposite direction. This car was an Oldsmobile in which plaintiff's husband was riding in the front seat as a passenger.

Both Barnard and Evans were in the right (south) traffic lane. When Barnard saw the brake lights flash on Evans' car he started 'pumping' his brakes. This caused his truck to slide, so he ceased. The reason Evans applied his brakes to slow down and eventually come to a stop immediately west of the bridge was that he was fearful of meeting and passing the Oldsmobile, coming from the east, on the bridge. Barnard, in the meantime, thinking that Evans merely was slowing down, and not realizing that he would ultimately stop, found himself gaining on Evans. After the Evans car stopped Barnard, realizing that he would collide with it unless he also stopped, applied his brakes 'hard.' This caused his load of cattle to shift to the south and caused the front end of his truck to shift to the left (north) lane. In the meantime the Oldsmobile was continuing to approach from the east. It crossed the bridge and collided head-on with the right front of Barnard's truck in the north traffic lane immediately west of the bridge, almost flush with the Evans car which had come to a stop in the right (south) lane of traffic. The Evans car was not touched. Plaintiff's husband died as the result of injuries received in the crash.

And so we have the picture, the circumstances of which, from the standing of each of the three drivers, are familiar to all who have driven on the highways in the wintertime. Evans, being fearful of passing an oncoming car on a bridge considerably narrower than the highway on either approach to it, slowed down and eventually stopped just before reaching the bridge. Barnard, following Evans down the highway, noticed him slow down but did not realize he was going to come to a complete stop until he, Barnard, was so close to him that he had to apply his brakes 'hard' in order to avoid crashing into the rear of Evans' car. Due to his load and the condition of the highway this caused Barnard's truck suddenly to swerve into the left traffic lane in the path of the westbound Oldsmobile, the driver of which, under the circumstances, was unable to avoid the collision.

The allegations of the pleadings need be mentioned only briefly.

The petition charged defendant Barnard with negligence in driving his truck at a high and dangerous rate of speed and in following the Evans car too closely, considering the condition of the highway; in failing to keep his truck under proper control; in failing to keep a reasonable and vigilant lookout for other vehicles upon the highway, and in permitting his truck to get into the wrong traffic lane.

Defendant Evans was charged with negligence in stopping his car upon the highway thereby creating a hazard to other vehicles; in failing to keep a reasonable and vigilant lookout for other vehicles upon the highway; in failing to signal his intention to stop his car upon the highway, and it was further alleged that the negligence of both defendants operated separately and concurrently so as to constitute the direct and proximate cause of the collision.

The separate answer of defendant Barnard denied negligence on his part and alleged the accident happened in spite of all proper care and diligence on his part and notwithstanding every possible effort on his part to prevent it, and that by reason of the stopping of the Evans car he, Barnard, was confronted with a sudden emergency in which he was compelled to attempt to bring his truck to a stop on the slippery and treacherous highway in time to avoid a collision. It was further alleged that the direct and proximate cause of the accident was the carelessness and negligence of defendant Evans in stopping his car and blocking the highway in violation of law, and that the negligence of the driver of the Oldsmobile in driving at an excessive and dangerous rate of speed was imputed to decedent, and that such negligence, combined with the negligence of Evans, was the proximate cause of the collision.

The separate answer of defendant Evans alleged that as he proceeded along the highway he observed the Oldsmobile approaching from the opposite direction at a high and dangerous rate of speed, swerving...