Massoni v. State Highway Commission
| Citation | 522 P.2d 973,214 Kan. 844 |
| Decision Date | 11 May 1974 |
| Docket Number | No. 47317,47317 |
| Parties | Jack R. MASSONI et al., Appellants, v. The STATE HIGHWAY COMMISSION of the State of Kansas et al., Appellees. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court
1. Under K.S.A. 60-456(d) expert testimony in the form of opinions otherwise admissible is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.
2. An expert witness may give an opinion as to what actions of the parties, if any, contributed to the collision but he may not give an opinion as to who was at fault in causing the collision.
3. Opinion testimony is not without limitations and although an expert witness may be permitted to give an opinion bearing on the ultimate issue he may do so only insofar as the opinion will aid the jury in the interpretation of technical facts or when it will assist the jury in understanding the material in evidence.
4. Where the normal experience and qualifications of laymen jurors permit them to draw proper conclusions from given facts and circumstances, expert conclusions or opinions to be drawn from the facts and circumstances are inadmissible.
5. Where the interests of multiple defendants are adverse to one another so that a good faith controversy exists among them, each such defendant is entitled to three peremptory challenges to the jury.
6. Unprovoked argument directing jurors' attention to the fact that any judgment rendered will be paid from tax funds constitutes an improper appeal to the self-interest of the jurors.
7. In an action against two defendants for damages resulting from an automobile collision, the record is examined and it is held: (1) The trial court erred in admitting expert testimony into evidence, as more fully related in the opinion, by reason of which new trial is ordered; and (2) no error is shown respecting the opening statements to the jury or in the number of peremptory challenges allowed the defendants.
Gene H. Sharp, Liberal, argued the cause, and Kerry E. McQueen, Liberal, was with him on the brief for appellants.
B. G. Larson, Dodge City, argued the cause and was on the brief for the appellees, Time-D. C., Inc., and Liberty Mut. Ins. Co.
Paul A. Wolf, Hugoton, argued the cause, and Paul W. Clark, Topeka, was with him on the brief for appellee State Highway Commission.
HARMAN, Commissioner:
This is an action for damages for wrongful death, personal injury and property loss arising out of a head-on collision between two passenger motor vehicles. Defendants in the action are the owner of a truck-trailer, its public liability carrier and the state highway commission. Plaintiffs sought recovery on the theory the combined negligence of the truck driver and of the driver of the vehicle with which plaintiff's vehicle collided plus statutory defects in the highway caused the collision. The case was tried to a jury which returned a general verdict for the defendants and plaintiffs have appealed.
We first summarize the background facts revealed at trial.
The collision occurred September 20, 1969, on U.S. Highway 54 approximately 14.6 miles northeast of Liberal. About one and one-half miles west of the area where the collision occurred the highway crosses the Cimarron river. From the river bridge northeastward the highway went upgrade and contained three marked lanes-two lanes for eastbound traffic separated by white stripes or dashes, and one for westbound traffic. The right hand lane for eastbound traffic, called a creeper or climbing lane, was for use of trucks and heavy vehicles ascending the hill. A double yellow line on the highway divided the eastbound from the westbound traffic in the area involved. The speed limit was seventy miles per hour. As eastbound traffic reached the crest of the hill and entered the transition lane the highway curved slightly to the right. Various highway department signs were posted along the right side of the highway for eastbound traffic. A short distance northeast of the road turning off to the Meade county state lake there was a pavement width transition sign which indicated a narrowing of the right side of the roadway. This sign was about 750 feet in advance of the actual transition in the road. Beyond this sign to the east there was a sign upon which the legend 'MERGING TRAFFIC' appeared. Next there appeared a curve sign indicating a curve to the right. Then in the transition area where the collision occurred there were five W 16 vertical panels delineating the tapered area of the roadway where the two eastbound lanes merged into one.
At about 9:30 a. m. on the day in question Celia J. Massoni was operating a Mercury automobile in a southwesterly direction toward Liberal at a point on the crest of the aforementioned hill on U.S. highway 54. She was accompanied by her sister, Melissa M. Massoni, and a friend, Vicki Hinz. Celia and Melissa were minor daughters of plaintiffs Jack R. Massoni and Mary Jane Massoni. Plaintiff Jack R. Massoni owned the Mercury automobile. An automobile driven by a Mr. Olsen was behind the Massoni vehicle, traveling in the same direction, and behind the Olsen vehicle a Mr. Hinman was driving his automobile with his wife as a passenger, also headed toward Liberal.
At the same time a truck-trailer rig, sixty feet in length and eight feet wide, owned by defendant Time-D. C., Inc., was proceeding northeasterly up the grade in the creeper lane. Behind the truck and also proceeding in a northeasterly direction was a Dodge automobile owned and being driven by Jerry C. Dean. Dean was accompanied by Jerome McHenry. McHenry was asleep until awakened by Dean's frantic voice just before the collision saying, 'Where is this guy going?' or something similar. As the truck was approaching and entering the unmarked transition lane without any left turn signal being made, Dean was seen to pull out to his left, apparently is an effort to go around the left side of the truck. As he was either at about the midpoint of the truck-trailer rig or at the rear, he collided almost head-on with the Massoni vehicle. The Dean car laid down forty-two feet of skidmarks to the point where it crossed the double yellow center lines, then thirty-two feet more of skidmarks up the roadway, then there were no skidmarks for a distance of twenty-two feet to the point of impact. The point of impact was three feet south of the north edge of the roadway or at the extreme right hand side of the Massoni lane of traffic, and was 280 feet east of the last of the white stripes marking the end of the creeper lane. After the Dean-Massoni collision the Olsen vehicle swerved and missed the Missoni car but slid into the Dean vehicle. Dean and Melissa Massoni were killed as a result of the collision. Celia Massoni was seriously injured and burned and we are told has no memory of the collision. The roadway where the collision occurred was about twenty-nine feet wide. The width of the two-lane roadway was twenty-four or twenty-five feet.
Other evidence and events occurring at trial will be related in connection with the matters raised on appeal; however, at this point it may be well to mention the basis of the claims asserted by plaintiffs against the defendant highway commission. Plaintiffs contended the highway was defective in that traffic control signs were not maintained in accord with the uniform sign manual adopted by the commission and also that it was defective in design. Highly summarized, plaintiffs asserted the curve sign was placed too close to the curve-it should have been from 500 to 600 feet further back to give adequate warning; the pavement width transition sign should have been set further west another 750 feet in advance of the hazard-also a duplicate sign should have been placed on the left side of the roadway to enable an eastbound driver to see it at a time when the view on the right might be blocked by a vehicle in the creeper lane; the merging sign was inappropriate and likely to cause driver confusion; the transition lane, 400 to 425 feet in length, was too short-it should have been from 600 to 840 feet long; and a creeper lane should not end at the beginning of a curve in the highway toward the right.
Although we are not here called upon to determine whether the evidence was sufficient to show that the highway was defective, mention should also be made of the fact that evidence pro and con was received on that issue. Plaintiffs' experts testified the signs and design mentioned did not conform to manual and bluebook requirements and that maintenance of the highway constituted a hazardous and dangerous condition-the highway commission produced experts who testified to the contrary.
Plaintiff-appellants assert several trial errors. We shall first consider two which in the unanimous opinion of the court constitute reversible error requiring new trial, although the court is divided as to the reasons.
Shortly after the collision a highway patrolman, Trooper Schlegel, who had had six years' experience in investigating highway accidents, went to the scene, conducted an investigation and made a report. Called as a witness by appellants, he testified as to the facts ascertained by him. Upon cross-examination by counsel for the truck company, the following occurred:
'Question: (By Mr. Larson) What did you find, if anything, to have been the contributing circumstance to this accident?
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