McElhaney v. Rouse
| Decision Date | 11 June 1966 |
| Docket Number | No. 44494,44494 |
| Citation | 197 Kan. 136,415 P.2d 241 |
| Parties | L. D. McELHANEY, Appellee, v. Dale M. ROUSE, Appellant, (Dale G. Wilshire, Defendant). |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The record is examined in an action for the recovery of damages for injuries sustained in a collision involving three automobiles, two of which were parked and the third oncoming, and it is held the trial court did not err: (1) In refusing to submit a requested instruction applying the doctrine of last clear chance; (2) in admitting a traffic accident report into evidence; and (3) in permitting a traffic investigator to give expert opinion testimony, all as more particularly set forth in the opinion.
2. Pursuant to Rules Nos. 3 and 6(c) and (e) of this court, costs for reproduction of the record on appeal will be assessed against the parties as justice may require when there appears to have been an infraction of the Rules.
Robert A. Coldsnow, Wichita, argued the cause, and E. Lael Alkire, Richard B. Clausing, Aubrey J. Bradley, Jr., and Gillard Cohen, Wichita, were with him on the briefs, for appellant.
Gerald Sawatzky, Wichita, argued the cause, and Robert M. Siefkin, Donald R. Newkirk, and Robert T. Cornwell, Wichita, were with him on the briefs, and Robert C. Foulston, George B. Powers, Carl T. Smith, John F. Eberhardt, Howard T. Fleeson, Homes V. Gooing, Wayne Coulson, and Paul R. Kitch, Wichita, of counsel, for appellee.
This is an action for personal injuries brought by plaintiff, L. D. McElhaney, against defendants, Dale G. Wilshire and Dale M. Rouse. The defendant Rouse filed a cross-petition against the plaintiff, McElhaney. During the trial a motion for a directed verdict by defendant Wilshire was sustained and he was removed from the case. A verdict was returned against plaintiff McElhaney and also against defendant Rouse on his cross-petition. The trial court overruled the respective motions of both parties for a new trial. Defendant Rouse has appealed to this court while plaintiff McElhaney did not appeal.
The action stems from an accident involving the cars of the three parties. It occurred north of Wichita on North Hillside Avenue, a blacktop street running north and south, the blacktop or paved portion thereof being twenty-seven feet in width at the point in question.
Defendant Wilshire, and two companions, Jackie R. Brown and David Wilson, were air force men, attached to Schilling Air Force Base at Salina. Prior to the accident they were proceeding north on Hillside in Wilshire's 1956 Mercury convertible when the engine hood came loose and popped up. Defendant Wilshire, who was driving, pulled to the right-hand edge of the road and parked. Wilshire testified that he pulled over as far as he could then stopped the car and got out to see what he could do about the hood on the car. He testified that the inner wheels of his car might have been just on the blacktop itself.
Defendant Rouse, seventeen years of age at the time of the accident, was driving his black 1955 modified Chevrolet in a northerly direction on Hillside and observed the parked Wilshire car. He proceeded north on Hillside to a drive entering a field, turned around and came back south on Hillside to offer help to the parked car. He testified that he parked his car on the west side of the road opposite the Wilshire car, approximately a car length north of the Wilshire car. Jackie Brown, an occupant of the Wilshire car, testified that the front bumper of the Rouse car was even with the back fender of the Wilshire car and the two cars were within a foot and one-half of being even or parallel. Rouse testified that the left wheels of his car were right on the edge of the pavement and that the body of his car extended a foot and one-half to two feet over the blacktop pavement. On cross-examination he recalled that in previous testimony given in a deposition he had estimated that the body of his car might have been two and one-half to three feet out on the roadway.
Plaintiff McElhaney testified that at approximately 10:30 p. m. on the night of the accident his wife had called and requested him to come to Wesley Hospital, where she was employed, and drive her home. He left his house at approximately 10:45 p. m. and drove his 1956 Chevrolet station wagon south on Hillside. He testified that he had been driving fifty to fifty-five miles an hour as he proceeded south on Hillside, slowed down to about forty-five to fifty miles an hour in crossing some railroad tracks and then passed a turkey farm. The testimony of other witnesses located the railroad tracks about a quarter of a mile north of the collision site. All he remembers after passing the turkey farm was a blinding flash of light 'just a bright, white, blinding, flash.' He remembered nothing more until he woke up in the hospital the next afternoon after having surgery. He further testified that he did not remember seeing any objects on the road prior to the collision.
The physical facts developed by the testimony of various witnesses of both parties disclosed that the right front of McElhaney's car collided with the left rear of the Rouse vehicle. After the impact the McElhaney car swung across the road, the left rear fender and bumper colliding with the left front of the Wilshire car, and inflicting personal injuries upon defendant Rouse who was standing beside the left front fender of the Wilshire car.
Appellant Rouse (defendant and cross-petitioner below) briefs and argues three points in seeking a new trial. Rouse first argues the trial court erred in refusing to give a requested instruction on the last clear chance doctrine. He contends the evidence indicated that the doctrine of last clear chance was applicable to the facts as developed in the trial.
The trial court, in denying the requested instruction, ruled as follows:
Appellee McElhaney contends the trial court's refusal to submit the requested instruction was proper for two reasons. He first contends that appellant's claim of error in this regard is not available for appellate review because appellant failed to include in his record on appeal other pertinent instructions of the court which were submitted to the jury.
The appellant's contention in this regard is based on the familiar and well-established rule of this court that where a party raises questions regarding instructions on appeal he must include at least all instructions pertinent to the point in issue in his record on appeal. (Connell v. Norton Coca-Cola Bottling Co., 187 Kan. 393, 357 P.2d 804; Neely v. St. Francis Hospital and School of Nursing, 188 Kan. 546, 363 P.2d 438.
Appellee McElhaney's statement of the rule and its applicability in general is correct. However, in the instant case the trial court's ruling in denying the requested last clear chance instruction clearly pinpoints the issue. We have concluded, therefore, that the question has been sufficiently delineated in the record to warrant our consideration of it on the merits, even though other instructions were not included.
The ruling of the trial court was premised on its opinion that the last clear chance doctrine was not applicable to the evidence in the case. A review of such ruling necessitates our consideration of the elements of the doctrine as applied to the evidence developed at the trial.
The elements of the doctrine as recognized in this jurisdiction have been announced in numerous decisions of this court. The most recent treatment of the subject was made in Letcher v. Derricott, 191 Kan. 596, 383 P.2d 533, in which the elements as stated in Gibbs v. Mikesell, 183 Kan. 123, 325 P.2d 359, were quoted as follows:
(183 Kan. p. 130, 325 P.2d 366.)' (191 Kan. p. 600, 383 P.2d p. 536.)
In considering the point at issue here, our attention is focused on element number two. In the Letcher case the language of the second element was discussed and it was stated:
The applicability of the doctrine in the instant case depends upon a determination of whether or not appellant Rouse presented evidentiary support for element two as stated either that the plaintiff's (cross-petitioner's) negligence had ceased or that the plaintiff had by his own negligence placed himself in a position of peril from which he could not extricate himself.
Appellant Rouse testified that after he parked his...
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Timsah v. General Motors Corp.
...but are generally admissible absent these evils. Smith v. Estate of Hall, 215 Kan. 262, Syl. P 1, 524 P.2d 684; McElhaney v. Rouse, 197 Kan. 136, 142-144, 415 P.2d 241 (1966); McGrath v. Mance, 194 Kan. 640, Syl. P 1, 400 P.2d 1013 (1965); Morlan v. Smith,191 Kan. 218, 380 P.2d 312 (1963); ......
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