Lehar v. Rogers

• Decision Date: 04 March 1972
• Docket Number: No. 46261,46261
• Citation: 208 Kan. 831,494 P.2d 1124
• Parties: James J. LEHAR and Joe Marie Lehar, Appellants, v. Bennie ROGERS, Appellee.
• Court: Kansas Supreme Court

Page 1124

494 P.2d 1124

208 Kan. 831

James J. LEHAR and Joe Marie Lehar, Appellants, v. Bennie ROGERS, Appellee.

No. 46261.

Supreme Court of Kansas.

March 4, 1972.

Syllabus by the Court

1. On appellate review this court will not weigh the evidence or pass upon the credibility of witnesses. When a jury's verdict is attacked for insufficiency of evidence, or as being contrary to the evidence, the power of this court begins and ends in determining whether there is any competent substantial evidence to support the verdict.

2. Whether a person had knowledge the driver of a vehicle would not observe the law of the road, or in the exercise of reasonable diligence should have had such knowledge, presents a jury question whenever reasonable minds might differ on the subject.

3. There is no fixed or absolute standard for measuring the adequacy or inadequacies of a verdict in a personal injury action, but the question must be decided on the particular facts of the individual case, and whether injury has proximately resulted from the negligence of a party, and the extent of any such injury, are ordinarily matters for a jury's determination.

4. Under the provisions of K.S.A.1971 Supp. 60-247, in a case where there is more than one defendant, additional peremptory challenges of jurors may be allowed upon a finding that a good faith controversy exists between defendants.

5. In an action for damages, stemming from a collision of two automobiles in an intersection where traffic is controlled by signal lights, the record is examined and it is held: Prejudicial error is not shown in any of the matters urged.

Otto J. Koerner, Wichita, argued the cause, and G. E. Carnahan, Wichita, was with him on the brief for appellants.

Jerry G. Elliott, of Foulston, Siefkin, Powers & Eberhardt, Wichita, argued the cause, and Mikel L. Stout, Wichita, was with him on the brief for appellee.

KAUL, Justice:

This was an action to recover for personal injuries and property damage sustained as a result of an intersection collision. Judgment was rendered on a general verdict for defendant on his counterclaim and plaintiffs have appealed.

On a rainy Sunday afternoon, March 23, 1969, defendant Rogers was driving east on 31st Street approaching the intersection of 31st Street and Meridian Avenue in Wichita. At the same time plaintiff James J. Lehar was driving north on Meridian Avenue approaching the described intersection, his wife, plaintiff Joe Marie Lehar, was a passenger riding in the front seat with her husband.

Traffic on both streets was controlled by signal lights operating in cycles of red, green and amber, or yellow. The signal light on the northeast corner of the intersection, which normally controlled northbound traffic on Meridian Avenue, had been struck by some object and rotated about 90 degrees so that it faced west toward eastbound traffic on 31st Street instead of northbound traffic on Meridian Avenue.

A filling station was located on the southeast corner of the intersection. There were two drives leading into the station from the east side of Meridian Avenue.

Testimony of the parties concerning the entrance of their respective vehicles into the intersection and the conditions of the signal lights at the time was in considerable conflict.

Defendant testified that as he approached the intersection he did not rely on the faulty light which was to his left, but that he entered the intersection in response to the green light facing him on his right. Before he entered the intersection defendant saw plaintiffs' car even with the south drive of the filling station. Defendant did not keep plaintiffs' car under constant surveillance. Defendant also looked to his left and saw some vehicles headed south on Meridian Avenue. He then drove on into the intersection. He further testified that prior to the impact he saw nothing that would constitute an impending danger to his entering and going through the intersection. Defendant never noticed the faulty light to his left until he was in the intersection.

Plaintiff James Lehar testified that when he was 100 to 150 feet south of the intersection the light facing him, and controlling northbound traffic, was green. He looked for eastbound traffic on 31st Street and saw a car coming which did not appear to be slowing down. When he was about 60 feet from the intersection he saw the danger and applied his brakes; when he reached the intersection he glanced up and saw the light facing him was yellow. On cross-examination Lehar testified that he could have stopped his car without hitting defendant if it had not been raining.

Officer Michael J. Kelty, of the Wichita Police Department, prepared the report of the accident. He took statements of both parties. Kelty testified that when he was going over the report with Lehar he questioned him concerning the fact that the report showed that Lehar had a red light for his direction of travel and that at Lehar's request he altered the report by marking out red and writing in yellow.

Burt Cooper, a member of the Wichita Police Department Reserves and commanding officer at the time, was standing in front of the service station and witnessed the accident. Cooper saw Lehar's vehicle when it was right in front of the north drive of the filling station at which time Lehar's light was yellow. Cooper did not know positively whether Lehar entered the intersection on a red light, it was either very near the end of the yellow phase or red. He was certain that Lehar did not have a green light. Cooper further testified that defendant entered the intersection first and that Lehar must have noticed some danger when he applied his brakes at least 55 feet south of the intersection.

Beverly Ann Horning was driving west on 31st Street intending to make a right turn onto Meridian Avenue. She stopped at a red light as she approached Meridian. When she attempted to proceed as the light turned green her car stalled. She started forward on the next green light and again her car stalled. At this point in time she saw the accident. She testified that had her car not stalled as she started forward on this last green light she would have been hit by plaintiffs' car. She further testified that when the accident occurred the signal light controlling traffic on 31st Street was green. On cross-examination she testified that when she looked up after the collision the 31st Street light was red.

Plaintiff, Joe Marie Lehar, testified that immediately prior to the collision she was not paying attention to traffic and was thinking about shopping and various other things. She did know that the streets were wet and that it was raining.

At the conclusion of the evidence, the City of Wichita, originally a party defendant, was dismissed from the action.

The jury returned a general verdict for defendant in the amount of $1,500. The undisputed evidence disclosed that the damage to defendant's car amounted to $962.80 and that his hospital bill totaled $33.20. Thus, it may be assumed the jury awarded the balance, or $504 to defendant for personal injuries.

On appeal plaintiffs assert six points of error. The first and principal contention argued is stated by plaintiffs in these words:

'1. The verdict in favor of the defendant, Rogers, was contrary to the evidence as a matter of law since the defendant, Rogers, admits he did not observe the danger which was in fact present.'

Before considering plaintiffs' argument, we should first note rules of appellate review particularly applicable to the point raised.

First, in testing a verdict against the evidence, we are required to consider the evidence in the light most favorable to the party who prevailed in the court below. (Wiley v. Board of Education, 205 Kan. 585, 470 P.2d 792; Riedel v. Gage Plumbing & Heating Co., 202 Kan. 538, 449 P.2d 521; and Frame, Administrator v. Bauman, 202 Kan. 461, 449 P.2d 525.) Second, this court does not weigh evidence and where a jury's verdict or a trial court's findings are attacked as being contrary to the evidence, the appellate issue is only whether there is any evidence to support the verdict or findings and if so, neither will be overturned on appellate review, e. g., Brohan v. Nafziger, 206 Kan. 58, 476 P.2d 649; Wiley v. Board of Education, supra; In re Estate of Bernatzki, 204 Kan. 131, 460 P.2d 527; and Schnug v. Schnug, 203 Kan. 380, 454 P.2d 474. It is of no consequence that there may have been contrary evidence adduced which, if believed by the jury, would have compelled a different verdict. (Robles v. Central Surety & Insurance Corporation, 188 Kan. 506, 363 P.2d 427; and Renner v. Mosanto Chemical Co., 187 Kan. 158, 354 P.2d 326.)

The main thrust of plaintiffs' argument on their first point is that defendant was guilty of negligence as a matter of law and thus the jury's verdict is contrary to law and cannot stand. Plaintiffs take this position on appeal, even though they did not move for a directed verdict on the point at any stage of the trial below.

Defendant testified that he entered the intersection in response to the green light to his right on the northeast corner of the intersection. This is the signal light which normally would govern defendant's actions. Even though inconsistencies were elicited on cross-examination, the testimony of the independent witnesses, Cooper and Horning, supports the testimony of defendant and plaintiffs' own testimony concerning the condition of the lights was inadequate at best. We think it unnecessary to burden this opinion with further details of the evidence. It is only necessary that we consider whether there is substantial evidence upon which the verdict is based and a recital of the contradictory evidence cannot aid in correctly determining the question. (Robles v. Central Surety & Insurance Corporation, supra.) This court has often said that the law favors trial by a jury and that the court should not usurp the...