Kuhl v. Atchison, Topeka & Santa Fe Ry. Co.

• Decision Date: 28 February 1992
• Docket Number: No. 65704,65704
• Citation: 827 P.2d 1,250 Kan. 332
• Parties: Norman KUHL and Billy D. Van Aken, Appellees, v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, a corporation, Willa Wright, and Green Country Inn of Merriam, L.P., a Kansas Limited Partnership, as owner of Oak Tree Inn, Appellants, and Juan Reyes and Curtis Canseco, Appellees.
• Court: Kansas Supreme Court

Page 1

827 P.2d 1

250 Kan. 332

Norman KUHL and Billy D. Van Aken, Appellees, v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, a corporation Willa Wright, and Green Country Inn of Merriam L.P., a Kansas Limited Partnership, as owner of Oak Tree Inn, Appellants and Juan Reyes and Curtis Canseco, Appellees.

No. 65704.

Supreme Court of Kansas.

Feb. 28, 1992.

Syllabus by the Court

1. When appellate review is sought on a motion for directed verdict, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where reasonable minds could reach different conclusions based on the evidence the trial court's denial of the motion must be affirmed. Following Holley v. Allen Drilling Co., 241 Kan. 707, Syl. p 1, 740 P.2d 1077 (1987).

2. An award for pain and suffering and other non-economic elements of damages is overturned on appeal only if the collective conscience of the appellate court is shocked.

3. In reviewing an award for economic elements of damages, such as loss of income, this court must review the record to determine if there is evidence to support the jury's computation of damages.

4. Where the alleged failure of the jury to follow instructions is not evident from the verdict or shown by definite proof, but is based solely on the fact that damages awarded to the plaintiffs are identical, the awards will be upheld if supported by the evidence and if they do not shock the conscience of the court.

5. The record is examined in a personal injury action arising out of a motor vehicle collision and it is held: (1) The district court did not err in denying the defendants' motion for directed verdict or in giving instructions to the jury on duty to keep a lookout to the rear, signaling on turning and stopping or decreasing speed, and method of giving signals; and (2) the verdict awarding damages for economic and non-economic loss is supported by the evidence and does not shock the conscience of this court.

Bradley S. Russell of Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, argued the cause, and Michael J. Dutton, of the same firm, was with him on the brief for appellants Willa Wright and Green Country Inn.

William P. Coates, Jr. of McAnany, Van Cleave & Phillips, P.A., Lenexa, argued the cause, and Douglas M. Greenwald, of the same firm, was with him on the brief for appellant Atchison, Topeka & Santa Fe Ry. Co.

Jon G. Carlson, of Jon G. Carlson & Associates, P.C., Edwardsville, Ill., argued the cause, and Davy C. Walker, Kansas City, was with him on the brief for appellees Norman Kuhl and Billy D. Van Aken.

Susan S. Baker of Payne & Jones, Chartered, Overland Park, was on the brief for appellee Juan Reyes.

ALLEGRUCCI, Judge:

This is a personal injury action arising out of a motor vehicle accident. The plaintiffs Norman Kuhl and Billy D. Van Aken were employees of the defendant, Atchison, Topeka & Santa Fe Railway Company (ATSF). Defendant Willa Wright was employed at the Oak Tree Inn, a motel owned by defendant Green Country Inn, and she was driving Kuhl and Van Aken to work when the motel's van was struck from behind by a car driven by defendant Juan Reyes and owned by defendant Curtis Canseco. The jury attributed 68% of the fault to ATSF, Wright, and Green Country Inn collectively, 22% to Reyes, and 10% to Canseco. The jury awarded the medical expenses incurred by each plaintiff, and the awards for pain, disability, and economic loss were identical. ATSF appealed the jury's awards of identical damages to the plaintiffs. Green Country Inn and Wright appealed, asserting three issues: the jury instructions, the award of damages, and the district court's failure to direct a verdict in their favor. The Court of Appeals, in an unpublished opinion filed August 23, 1991, found no error as to the instructions, but reversed the jury's award of damages and remanded the case for a new trial on that issue. --- Kan.App.2d ----, 815 P.2d 1133. Wright and Green Country Inn sought review of the Court of Appeals' decision as to the jury instructions, and plaintiffs sought review as to the reversal of the jury's award of damages. We granted both petitions for review.

Wright, who was employed at the Oak Tree Inn to drive railroad employees who stayed at the motel, drove Kuhl and Van Aken in a van from the Oak Tree Inn to the ATSF yards. When she stopped to make a left turn into the yards, a car driven by Reyes struck the rear of the van.

Those witnesses who were asked how long the van was stopped waiting to turn left gave widely varying answers. Jennifer Fountain, a teenaged pedestrian who witnessed the accident, estimated that the van was stopped for three seconds before it was struck. Wright said she did not know how long she was stopped before the accident occurred and could not estimate the time. She did remember, however, that several oncoming cars passed her before the van was hit. At trial Van Aken testified that he did not know exactly how long the van was stopped, but that the stop and the screeching of tires and the impact all occurred in a matter of seconds. In his deposition, Van Aken said that the van was stopped for 15 seconds or less. He remembered that there were several oncoming cars. Kuhl gave a statement to an insurance adjuster in which he said that the van was stopped between 30 and 45 seconds, and in his deposition he said approximately 30 seconds. At trial he testified that he had never been able to do more than roughly estimate how long they were stopped because he was not paying attention and "how seconds tick off I have no idea."

The evidence is sharply conflicting on the question of how quickly Wright stopped the van. Jennifer Fountain used the phrase, "slammed on her brakes." Wright testified that she stopped the van in a normal fashion. Reyes several times said that Wright "slammed on her brakes," but added that the van did not slide. He also testified, however, that she did not slam on her brakes. He testified that her stop was "sudden," but not so sudden as to cause the front end of the van to dip. Mark Walker, a passenger in the car driven by Reyes, described the stopping of the van as "real abrupt" and "real sudden."

With regard to whether Wright signaled her intention to turn left, Wright is the only person who testified that she signaled before the van was hit. She said that the blinker was on before she came to a stop. Jennifer Fountain said that the turn signal was not on before the accident. She also testified that, after the accident and after Wright surveyed the back of the van for damage, Wright went back into the van in order to activate the signal. Then Fountain heard Wright say she had it on. Reyes testified that Wright did not signal. Walker testified that Wright did not signal. Kuhl and Van Aken testified that immediately after the impact, Wright repeated over and over that she had turned on the turn signal.

It was daylight when the accident occurred. There is no indication that there were any adverse weather conditions in effect.

Juan Reyes was 15 years old at the time of the accident. He had neither a driver's license nor a learner's permit. Curtis Canseco was his friend, and Canseco had asked Reyes to take the car and run an errand for him. Reyes estimated that he was driving 25 m.p.h. The police report set his travel speed between 27 and 32 m.p.h. When Reyes first noticed the van, it was one car length away, and he saw the van's brake lights come on. The van was stopped when he hit it.

After the accident Van Aken walked from the van into the rail yard and rode the train back to Iowa. He had a mild headache, his neck hurt, and there were some warm sensations in his neck. The next day he was "really sore." He did not work for approximately two weeks. After that he had neck discomfort and severe headaches which caused him to miss some work. He slipped on some oil and fell in May 1988. Riding trains "really bothered" him, and he never got better. In December 1988 his doctor suggested a lighter form of work. Van Aken testified that he continues to be stiff and cannot turn his head quickly. He continues to remain physically active, but has tailored his exercises to his condition. He belongs to a health club where he rides an exercise bicycle with moving handle bars and lifts 50 to 60 pounds while lying on a bench; he jogs three miles twice a week and rides a mountain bike, but he no longer plays golf.

Van Aken was 38 at the time of trial. He had worked for ATSF for 16 years. His earnings as a brakeman with ATSF during the year 1987 were $27,911. He continued to work in his position until December 1988, approximately 10 months after the accident, when his doctor suggested that he find a lighter form of work. ATSF was reducing its work force and offering buyouts to brakemen at that time. Van Aken voluntarily left his job with ATSF and took a $37,000 buyout payment. Six months later he moved to Florida and began employment with a real estate agency selling residential property. During the last six months of 1989, he earned $480. In the first four months of 1990, before trial began in May 1990, he earned between $2,000 and $3,000, and he believed that his income would continue to increase as his clientele developed. Van Aken's expert economist calculated his lost income at $424,000 to $483,000--the lower figure being based on retirement at age 62 and the higher at 66.

Kuhl also walked away from the accident and rode the train back to Iowa as scheduled, but he began experiencing tightened back muscles and a headache before reaching his destination. He never was hospitalized for injuries suffered in this accident. Kuhl described his problem as "[m]ainly terrific headaches around the skull. Start here behind the skull down this big leader, that muscle right there, that was my main problem. Still today that is a very tender place." He testified...