Long v. Foley

• Decision Date: 30 June 1956
• Docket Number: No. 40191,40191
• Citation: 180 Kan. 83,299 P.2d 63
• Parties: G. B. LONG, a Minor, by Bryan Long, his Father, Natural Guardian, Legal Guardian and Next Friend, Appellee, v. Loyd FOLEY, Administrator of the Estate of Lowell Foley, Deceased, Appellant.
• Court: Kansas Supreme Court

Page 63

299 P.2d 63

180 Kan. 83

G. B. LONG, a Minor, by Bryan Long, his Father, Natural Guardian, Legal Guardian and Next Friend, Appellee, v. Loyd FOLEY, Administrator of the Estate of Lowell Foley Deceased, Appellant.

No. 40191.

Supreme Court of Kansas.

June 30, 1956.

Rehearing Denied Oct. 3, 1956.

Syllabus by the Court

1. In order to recover damages under G.S.1949, 8-122b, commonly referred to as the automobile guest statute, the evidence must show that the host's conscious conduct indicated a reckless disregard and complete indifference and unconcern for the probable consequences of his wrongful act. Following Bailey v. Resner, 168 Kan. 439, 214 P.2d 323, and other decisions cited in the opinion.

2. A motion for judgment on the special findings non obstante veredicto admits that for purposes of ruling on the motion all special findings are supported by evidence and unless such findings clearly overthrow the general verdict such verdict must be permitted to stand.

3. In this jurisdiction there is a presumption that a deceased person involved in an automobile accident exercised due care for his own safety. However such presumption is rebuttable and may be overcome by direct or circumstantial evidence.

4. Concurrent negligent acts of two or more persons render them liable as joint tortfeasors.

5. The rule, that in actions to recover damages for injuries sustained in automobile accident cases contributory negligence bars recovery, is of no avail to a defendant whose wanton conduct is the proximate and/or legal cause of such injuries.

6. The record in an action to recover damages under provisions of the automobile guest statute examined, and held, that under the facts, conditions and circumstances described and discussed at length in the opinion the trial court did not err in overruling and denying defendant's (1) motion to require the jury to give more direct and responsive answers to certain special questions; (2) objections to the one instruction complained of on appeal; (3) motion for judgment non obstante veredicto; (4) motion for a new trial.

Hal E. Harlan, Manhattan, and Wm. B. Ryan, Norton, argued the cause, and A. M. Johnson, Manhattan, and George P. Nellans, Norton, were with them on the briefs for appellant.

L. F. Cushenbery, Oberlin, and Frank B. Morrison, Lincoln, Neb., argued the cause, and John M. Bremer and Ernest McRae, Oberlin, were with them on the briefs for appellee.

PARKER, Justice.

This is an action by G. B. Long, a minor, brought by his father as natural guardian and next friend, against the estate of Lowell Foley, deceased, to recover damages for injuries sustained when an automobile, in which such minor was riding as a guest of the decedent, collided with another motor vehicle on a public highway. The case originated in probate court but subsequently, as authorized by statute, G.S.1949, 59-2402, was transferred to district court and tried by a jury. Plaintiff recovered and the defendant appeals.

The nature of the appeal is such it merits more than ordinary attention. For that reason the pertinent facts and other matters involved in connection with the issues presented will be fully detailed, outlined and discussed.

At the outset, since error assigned in the overruling of a demurrer to the petition is neither briefed nor argued, it may be stated that the pleadings are not in question and require no detailed reference. Hence, for all pertinent purposes, it can be said that plaintiff's petition alleges he was a guest, riding in the automobile of Lowell Foley and, specifying the acts relied on, seeks recovery on the theory that such decedent's gross and wanton negligence caused the involved accident; and that the answer, after generally and specifically denying all acts of negligence relied on in the petition, alleges that negligence of the driver of the other automobile caused the collision, also that plaintiff's own negligence contributed to his injuries and therefore precluded his recovery.

The facts, events, and proceedings required to give readers of this opinion a proper understanding of what is involved on appellate review can be stated thus:

The city of Oberlin is located in the northwest portion of Kansas in Decatur County. U. S. Highway 36 runs in an east and west direction along the north side of such city and U. S. Highway 83 runs in a north and south direction along the west side thereof. The highways intersect at the northwest corner of the town. A gas filling station with private driveways from the south and west is located at the northeast corner of this intersection. Another filling station, cafe and Port of Entry station with private driveways from both the north and west is located at the southeast corner of such intersection and a drive-in cafe, with private driveways from the north and east, is located at the southwest corner thereof. On the date and at the time in question such intersection was protected by a traffic light, located above the center thereof, which flashed amber or caution for east and west traffic on U. S. 36 and red for traffic going north and south on U. S. 83 through the intersection. In addition, for the protection of traffic and the public in general, there were stop signs on U. S. 83 on both sides of U. S. 36, the stop sign north of the north line of U. S. 36 being located on the west side of U. S. 83 and sixty-five feet north of U. S. 36.

Early in the evening of February 24, 1954, some fifteen or sixteen boys, who were high school students at Oberlin, left that city in two cars and a pickup truck for Danbury, Nebraska. All parties were students in the high school and friends. On the way back from Danbury the plaintiff and five other young men were riding as guests of Lowell Foley, who was driving his own automobile. Behind them was a pickup truck, driven by Derry Bishop, in which several boys were riding. About a mile or two north of the intersection in question, as these motor vehicles were traveling south on U. S. 83 toward Oberlin, the driver of the pickup truck tried to pass the Foley car but on each occasion Foley increased his speed and such attempts were unsuccessful. When the vehicles reached a point one-half mile north of such intersection this racing ceased to the extent that Bishop dropped behind the Foley car. Foley, however, did not materially reduce his speed but continued on down the highway at approximately seventy miles per hour. As he drew near the intersection his brake lights were seen to light up momentarily. However, notwithstanding he was familiar with it, and with the surrounding territory, Foley proceeded on across the intersection of U. S. 83 and U. S. 36, without slowing down; without stopping at the stop sign; without warning of any kind; and without regard for the flashing red light, at a speed of seventy miles per hour and on down U. S. 83, which was then within the city limits of Oberlin in a thirty mile per hour speed zone. Immediately after crossing the intersection at the rate of speed indicated he swerved his car to the left and east on U. S. 83 in order to pass an automobile which had turned in front of his vehicle for the purpose of driving into the driveway on the west side of the road. He then continued on down such highway to a point 294 feet south of of the south side of U. S. 36 where, having by this time reduced his speed to sixty miles per hour, he crashed head on, at approximately 10:30 P.M., into another automobile approaching from the south at a speed of ten miles per hour, driven by Clarence Musgrave, at a time when both automobiles were partially over the center line of such highway and partially out of their respective lanes of traffic.

The result of the collision, which demolished both automobiles, was indeed tragic. Mr. and Mrs. Musgrave, occupants of the other automobile involved, were killed. Foley and two other young men in his automobile were killed. The four remaining occupants of his vehicle each sustained serious injuries, the most severely injured being the plaintiff who, by reason of his injuries, according to the undisputed medical testimony adduced at the time of the trial, had become permanently paralyzed from the waist down for life, such paralysis including bladder and rectal function. Other undisputed evidence adduced at the trial discloses that as a result of his injuries plaintiff had and will continue to have severe pain and suffering; that he incurred large hospital and medical bills; and that he will require constant care and attention during the duration of his paralysis. In addition, it should be added, that according to a stipulation between the parties, plaintiff was 15 years old at the time of the accident and his life expectancy 'would be 51 years of age.'

The cause was heard by a jury with issues joined and on facts, which it is to be noted do not purport to cover the details of all evidence adduced, as heretofore related. At the close of such trial, after both parties had made requests for instructions and special questions and objections to instructions and special questions the court had indicated would be submitted, the cause was submitted to the jury which returned a general verdict in favor of plaintiff for a liberal sum, and answered special questions, which read:

'1. Was the plaintiff, G. B. Long, familiar with the intersection of U. S. Highways No. 83 and 36, as it existed on the night of the accident? Answer: Yes.

'2. Was Lowell Foley, now deceased, racing with the pickup truck driven by Derry Bishop on U. S. Highway No. 83 at a point approximately one or two miles north of the intersection of Highways No. 83 and 36? Answer: Yes.

'3. If you answer Question No. 2 'Yes', then state how close the two vehicles were to the intersection of U. S. Highways No. 83 and 36, when the race ended? Answer: 1/2 mile.

'4. Did the plaintiff, G. B. Long, at any time make any protest to Lowell Foley as to the manner in which Foley was operating...