Langhofer v. Reiss, 80-51239-A

• Decision Date: 12 December 1980
• Docket Number: No. 80-51239-A,80-51239-A
• Citation: 5 Kan.App.2d 573,620 P.2d 1173
• Parties: Darrell D. LANGHOFER, Appellant, v. Scott M. REISS, Appellee, v. YAMAHA INTERNATIONAL CORPORATION, a corporation, and Yamaha Motors, Ltd., a corporation, Appellees.
• Court: Kansas Court of Appeals

Page 1173

620 P.2d 1173

5 Kan.App.2d 573

Darrell D. LANGHOFER, Appellant, v. Scott M. REISS, Appellee, v. YAMAHA INTERNATIONAL CORPORATION, a corporation, and Yamaha

Motors, Ltd., a corporation, Appellees.

No. 80-51239-A.

Court of Appeals of Kansas.

Dec. 12, 1980.

Syllabus by the Court

1. In civil litigation where the doctrine of comparative negligence, as provided in K.S.A. 60-258a, is applicable, a plaintiff's individual negligence will be compared with the collective negligence of multiple defendants as found by the court or jury for the purpose of computing damages.

2. The negligence of a party seeking damages in a comparative negligence action under K.S.A. 60-258a does not bar recovery of damages so long as the party's negligence is less than the combined causal negligence of all parties against whom recovery is sought.

3. A defendant in a comparative negligence action who has asserted a claim against the plaintiff and third-party defendants and whose negligence is equal to that of the plaintiff but less than the aggregate negligence of the plaintiff and third-party defendants, is entitled under K.S.A. 60-258a to recover proportionate damages against the plaintiff.

James B. Zongker, of Render & Kamas, Wichita, and Ross A. Hollander, of Nieto & Hollander, Wichita, for appellant.

Lynn R. Johnson and Mark A. Johnson, of Schnider, Shamberg & May, Chartered, Kansas City, for appellee Scott M. Reiss.

Before FOTH, C. J., and SWINEHART and MEYER, JJ.

SWINEHART, Judge:

This is an appeal by the plaintiff from a jury verdict in a civil action which assessed the comparative fault for a collision between the motorcycles operated by the plaintiff and defendant. The issues on appeal are (1) whether the verdict of the jury finding negligence on the part of the plaintiff, Langhofer, was supported by sufficient evidence; (2) whether the trial court erroneously failed to grant a directed verdict in favor of Langhofer and against the defendant, Reiss, at the close of all the evidence; and (3) whether Reiss is barred from collecting damages from Langhofer because his negligence was found to be equal to that of Langhofer.

On August 12, 1974, Darrell D. Langhofer, the plaintiff, and his family attended a family reunion at the city park in Plains. At about 9:00 p. m., the Langhofers left the function. Mary Ellen, Darrell's wife, and the couple's son departed in the family station wagon, and Darrell and their daughter Debra followed on a motorcycle. Both drivers (Darrell D. Langhofer and Mary Ellen Langhofer) turned on their vehicles' driving lights as they left the park.

The Langhofers proceeded west toward their home on a straight four-mile stretch of Highway 160, which is a two-lane blacktop road running east and west on the northern edge of Plains. The road was characterized as fairly flat with slight rises in it. When the motorcycle carrying Darrell and Debra approached the family station wagon, Darrell sought to pass the vehicle. (It had been a custom in the Langhofer family to play a game in which whoever was with father would "beat mother home.") Prior to passing, Darrell blinked his lights to indicate he was beginning to pass and looked around the station wagon for oncoming traffic. When he was even with the station wagon, he saw the reflection of his motorcycle light or the lights of the station wagon in an oncoming sealed beam headlight. Within seconds, Langhofer collided with a motorcycle operated by the defendant Scott Reiss which had been traveling east on Highway 160 without its headlight burning. Reiss had not observed the Langhofer motorcycle until immediately prior to the impact.

Just before the accident, defendant Reiss had been traveling east on Highway 160 in pursuit of an unidentified vehicle driven by a person who was suspected of stealing gasoline from a tank on the Reiss farm. Defendant began chasing the vehicle on his motorcycle, a 360 Yamaha, without turning on its headlight. He later turned the headlight on when he reached the top of a hill on the highway and glimpsed the alleged thief a mile or a mile and three-quarters ahead of him, because he needed his light to see the vehicle. As Reiss was approaching the area of the collision, the headlight of his motorcycle flickered, then came back on. Reiss continued the chase down the road, watching the alleged thief until his vehicle turned south on Copeland Road. Shortly thereafter, Reiss ran over bumps in the road near some gas pipes and his motorcycle headlight went completely out. He attempted to turn the light on again, but his efforts were unsuccessful. As he came over the rise of a hill, Reiss saw the headlights of the oncoming Langhofer car, and the headlight of the Langhofer motorcycle suddenly appeared. The collision occurred immediately thereafter. Reiss testified that he was traveling at perhaps 50-70 mph at the time he hit the bumps in the road when his motorcycle headlight went out. He thought the Langhofer automobile was perhaps 300-400 feet away from him when his motorcycle headlight went out and he first saw the vehicle. Reiss did not believe that the parties could have seen each other until they reached the trees along the side of the road near the collision site.

The sun had set that evening at 8:40 p. m., and Reiss characterized the remaining light in the sky as dusk. Langhofer testified that there might have been some light in the sky, yet it was dark, although not pitch dark. There was a slight rise in the road not far from where the collision occurred, and there was some suggestion that a person might lose sight of a car due to the rise. However, there were no prohibitions to passing in the area.

Michael Cox, a deputy sheriff in Meade County, had measured and inspected the accident scene at the request of Yamaha's counsel. He was of the opinion that a motorcycle traveling one-half mile west of the point of impact and an automobile traveling one-half mile east of the point of impact would have continuous visibility of one another with their headlights burning. Trooper John Murphy of the Kansas Highway Patrol concurred with this opinion. Additionally, Ronald Seaman, a consulting engineer from Liberal, surveyed the area surrounding the point of impact. He testified that if the Langhofer automobile and the Reiss motorcycle had both had their lights on, they would have had continuous visibility of each other any place within 2,800 feet of either side of the point of impact.

In response to a petition filed against him by Langhofer, Reiss asserted a claim for damages by counterclaim against Langhofer, and third-party claims against the Yamaha Corporations. Langhofer followed with the inclusion of the Yamaha Corporations as additional parties against whom he sought recovery. In due course, the case came to trial.

At the close of all the evidence, both Langhofer and Reiss moved for directed verdicts, and both motions were denied. The jury found the plaintiff, Langhofer, 40% at fault; the defendant, Reiss, 40% at fault; and the third-party defendants, Yamaha Corporations, 20% at fault. Separate new trials were granted both the plaintiff and defendant, limited solely to the damage issues. At his damage trial, the jury found that Reiss had sustained damages in the amount of $205,000. The trial court therefore entered judgment in the amount of $123,000 to Reiss, which was 60% of the jury's damage figure. Langhofer was found liable for $82,000 of the amount, and the Yamaha Corporations for $41,000. The companion journal entry of judgment was filed on June 7, 1978. On June 5, 1979, Reiss' cross-claims against the Yamaha Corporations were dismissed with prejudice. Langhofers' claims against the Yamaha Corporations were also dismissed with prejudice in an order filed on June 13, 1979. Finally, in a journal entry filed on June 14, 1979, the trial court approved the settlement of the claims of plaintiffs Darrell D. Langhofer and his daughter Debra Langhofer against Reiss, and accordingly, the actions brought against Reiss were dismissed with prejudice. The plaintiff, Darrell Langhofer, filed a notice of appeal on April 2, 1979.

The first issue is whether the verdict of the jury finding negligence on the part of the plaintiff was supported by sufficient evidence. The plaintiff contends that the record is totally devoid of any evidence to sustain the jury's finding attributing 40% of the causal negligence for the accident to him. Specifically, he argues that his motorcycle had been operated with its headlight burning. Further, he claims he had no reason not to pass his wife's vehicle at or near the point of the collision because he was not in a no-passing zone, had checked for oncoming traffic, and could not possibly have seen the unlit motorcycle. He also asserts that the finding of the jury that the defendant unreasonably operated his motorcycle after he discovered that the headlight had gone out is inconsistent with the finding that the plaintiff was negligent.

The defendant counters that there were reasons that plaintiff should not have passed his wife's station wagon, e. g., the rise in the road, the rough spots in the passing lane of the road, of which plaintiff had knowledge. He also suggests that the family game of "beating mother home" constituted evidence of a breach of due care on the part of the plaintiff because plaintiff's attention would, of necessity, be diverted from his driving. Finally, he argues that the plaintiff should have seen the defendant's vehicle before its light flickered out, and that his failure to do so was an indication that he was preoccupied or that his vision was obscured by the terrain.

The relevant legal principles to be applied in an appellate review of the evidence required to support a verdict are contained in Kleibrink v. Missouri-Kansas-Texas Railroad Co., 224 Kan. 437, 440-441, 581 P.2d 372 (1978):

"We have often stated a verdict or finding of a jury cannot be disturbed by the...