Kreh v. Trinkle

• Decision Date: 03 August 1959
• Docket Number: No. 41253,41253
• Citation: 185 Kan. 329,343 P.2d 213
• Parties: Elizabeth L. KREH, Appellant, v. Andrew Wayne TRINKLE, Appellee.
• Court: Kansas Supreme Court

Page 213

343 P.2d 213

185 Kan. 329

Elizabeth L. KREH, Appellant, v. Andrew Wayne TRINKLE, Appellee.

No. 41253.

Supreme Court of Kansas.

Aug. 3, 1959.

Rehearing Denied Sept. 8, 1959.

Syllabus by the Court

1. 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.

2. Instructions to the jury and special questions submitted to the jury should be germane to the issues made by the pleadings and limited to such of them as are supported by some evidence.

3. In a negligence action for damages for personal injuries sustained by the plaintiff as a passenger in an intersection collision between two automobiles the jury returned a general verdict for the defendant and specifically found that the collision was the result of an unavoidable accident. Upon examination of the record, the evidence is found to present only issues of negligence between the parties and it is held: It was improper to give an unavoidable accident instruction to the jury and to submit a special question thereon, and upon all the facts and circumstances presented by the record, including the evidence and the other instructions, the trial court committed reversible error.

4. A party is entitled to have the trial court give an instruction to the jury which is essential to his theory of the case when there is sufficient evidence to support such theory.

5. It is error to admit a written X-ray report upon the testimony of a medical doctor when such report is made by another doctor.

Richard Millsap, Kansas City, argued the cause, and Allen Meyers, Philip C. Gault, Herbert A. Marshall, Doral H. Hawks, Turner M. Murrell and Wm. Carl Zimmerman, Topeka, and J. E. Schroeder, Lee E. Weeks, Leonard O. Thomas, J. D. Lysaught, Robert H. Bingham and Ervin G. Johnston, Kansas City, were with him on the briefs for appellant.

Charles L. Davis, Jr., Topeka, argued the cause, and Howard A. Jones, William E. Haney and George B. Trubow, Topeka, were with him on the briefs for appellee.

SCHROEDER, Justice.

This is a negligence action for damages for personal injuries sustained by the plaintiff as a passenger in an intersection collision between two automobiles in Wyandotte County, Kansas. The plaintiff appeals from a verdict for the defendant and from the overruling of her post-trial motions specifying various trial errors.

On the 25th day of September, 1955, at approximately 5:00 p. m., at the intersection of 38th Street and State Avenue, just west of the city limits of Kansas City, Kansas, the plaintiff, Elizabeth L. Kreh, was riding as a passenger in an automobile being operated by her husband, Louis Kreh, when it became involved in the collision with the defendant. State Avenue, which is also U. S. Highway 24 and 40, is marked into four driving lanes, but is not a divided highway. Rain was falling at the time of the collision, and the intersection was controlled by traffic lights.

Briefly stated, the Kreh automobile was traveling east on State Avenue and made a left-hand turn at the intersection immediately in front of the defendant's automobile approaching from the opposite direction on State Avenue.

The plaintiff testified there were two automobiles ahead of them proceeding in the same direction. Her husband brought the automobile to a stop behind these two vehicles which were stopped in obedience to a red traffic light at the intersection in question. These two automobiles ahead of the plaintiff turned left on 38th Street. She testified her husband again gave a signal for a left turn and continued the signal until his vehicle reached the center of the intersection, where her husband again stopped the automobile. At that time she saw the defendant's automobile approximately a block away and her husband started to turn the corner left. She looked into 38th Street and then looked again to the east and saw the defendant's automobile approaching at full speed. At that time it was 'close to fifty feet away' and she 'hollered' to her husband 'Watch that car.' When the plaintiff's husband looked at her the collision occurred almost immediately.

On cross examination the plaintiff testified that her husband had completed his turn and was on 38th Street when the defendant struck the automobile in which the plaintiff was riding after it was headed due north and clear of the intersection. She estimated the speed of the defendant at 50 or 60 miles per hour.

The deposition testimony of the plaintiff's husband was admitted into evidence. His testimony was similar to that of the plaintiff except as hereafter noted. He testified that he saw the defendant's west-bound automobile while he was stopped near the center of the intersection; that it was at least 300 feet east at that time; that he could not estimate the defendant's speed when he first saw him because he was about 300 feet off, but he assumed the defendant's speed to be 20 miles per hour at that time. He formed a later opinion when he saw the defendant coming at a terrific speed, which he estimated to be at least 50 miles per hour.

Both the plaintiff and her husband testified that the parties were taken before a justice of the peace following the collision and the justice asked the defendant how the collision occurred. They both related that the defendant said he was watching some other automobiles and did not see the automobile in which the plaintiff was riding until his (the defendant's) wife told him that there was a man turning. He said he was watching two other automobiles which had gotten across and was trying to keep up with them; that he was in charge of some children from the Sunday School at Silver Lake, Kansas, and that they had had a picnic at Swope Park in Kansas City.

The testimony of the justice of the peace confirmed the testimony given by the defendant in his court that he did not see Mr. Kreh's automobile until called to his attention by his wife.

A patrol officer with the Wyandotte County Sheriff's Patrol investigated the accident and testified that the accident occurred 'about even with the curb or the north edge of the pavement.' He related that the Kreh automobile was making a left-hand turn and was damaged on the right side at approximately the front door. Neither of the automobiles left any skid marks at the intersection. He further related statements made by the defendant to the effect that the defendant was in charge of a Sunday School or a church group and that 'one of them was lost.' He testified:

'Q. Did he tell you anything further that you recall? A. I recall he said he didn't see the car he hit, he said he was looking in the back to see if the cars were following him or caught up with him.

'Q. Did he say he had his head turned around? A. Looking through the rear-view mirror.

'Q. Did this man, I will ask you if he told you what first called his attention to the Kreh automobile? A. He said he heard his wife scream and looked up and the car was right in front of him.'

Another witness who was an officer employed by the Wyandotte County Sheriff's office testified concerning his investigation of the accident. He gave the location of the accident as the northeast corner of the intersection. With reference to the north edge of State Avenue the point of impact was said to have occurred 'To the extreme north to the curb line at the edge of what would be State Avenue, the curb line at the north edge.' He further related there were no skid marks. He also related statements of the defendant to the effect that the defendant was looking around for a car that was lost that was supposed to be following him.

The defendant testified that he resided in Silver Lake, Kansas, and that his wife and son were riding with him on the date in question at the time of the collision. His daughter was riding in a car ahead. His family and a Sunday School class had been to Kansas City and had visited Swope Park and other places. There were three other cars in the group besides his own. His capacity was that of a chaperon. They had previously stopped at a drive-in-lunch on State Avenue and at that time all cars were together. He related that the other cars all left first and that one of the cars was still in sight at the time of the collision. He testified this other car was approximately one-half block ahead of him and passed right through the green light headed west. Confronted with statements made by the other witnesses the defendant denied that any of the other cars in the group were lost or that any of them were behind him.

The defendant further testified that as he got into the intersection and approached near the middle a car swerved from one of the east-bound lanes into the lane in which he was driving. His wife said 'That fellow is going to turn.' She made that statement before or about the same time that he saw the vehicle. Prior to that time he had not specifically noticed this particular automobile. He testified at that time the traffic from the west was heavy and that no other cars turned left ahead of this car; that he did not see Mr. Kreh give any arm signal for a left turn; that the Kreh automobile made an are from the south lane which 'had kind of a leaning attitude as it made a turn to the north.' The defendant stated that it was his intention to proceed west through the intersection; that immediately prior to the impact he was traveling at 25 miles per hour; and that he had been driving that same speed prior to the collision. The defendant estimated the speed of the Kreh automobile at 10 miles per hour during the turn.

He drew a diagram giving his description of the accident in which he showed that from the time he first saw the Kreh automobile he...