McGlothlin v. Wiles

• Decision Date: 16 July 1971
• Docket Number: No. 46039,46039
• Citation: 207 Kan. 718,487 P.2d 533
• Parties: Velma V. McGLOTHLIN, Appellee, v. Phillip A. WILES and Harold P. Harvey, Appellants.
• Court: Kansas Supreme Court

Page 533

487 P.2d 533

207 Kan. 718

Velma V. McGLOTHLIN, Appellee, v. Phillip A. WILES and Harold P. Harvey, Appellants.

No. 46039.

Supreme Court of Kansas.

July 16, 1971.

Syllabus by the Court

1. A passenger in a motor vehicle has the duty to exercise that care which a reasonably careful person would use for his own protection under the existing circumstances.

2. Ordinarily, the duty of care imposed on a passenger in the back seat of an automobile is not commensurate with that required of the driver.

3. A passenger, as a general rule, may properly rely upon the driver to attend to the operation of the vehicle in the absence of knowledge of danger or of facts which would give him such knowledge.

4. When the evidence relating to a driver's negligence creates a factual issue upon which reasonable minds could reach different conclusions, a motion for directed verdict must be overruled.

5. A trial court, in giving an instruction substantially in the language of K.S.A. 8-552(b), is not required to define the term 'immediate hazard.'

6. The record is examined in a damage action wherein a paying passenger recovered a substantial judgment against her driver and the driver of the other vehicle involved in the collision, and it is held the trial court did not commit reversible error (1) in removing the issue of plaintiff's contributory negligence, (2) in denying motions for a directed verdict and a motion for mistrial, (3) in its various rulings relating to the admissibility of evidence, and (4) in failing to give requested instructions.

Gerald Sawatzky, of Foulston, Siefkin, Powers & Eberhardt, Wichita, argued the cause, and Mikel L. Stout, Wichita, was with him on the brief for appellant Harvey.

David W. Buxton, of Fleeson, Gooing, Coulson & Kitch, Wichita, argued the cause, and John E. Rees, Wichita, was with him on the brief for appellant Wiles.

John C. Frank, Wichita, argued the cause, and was on the brief for appellee.

O'CONNOR, Justice.

This is a damage action growing out of an automobile collision in which the plaintiff, Velma V. McClothlin, sustained personal injuries. A substantial judgment was rendered against the defendants, Harold P. Harvey and Phillip A. Wiles, and they have appealed.

The numerous trial errors urged as grounds for reversal have been condensed into four main categories for the purpose or discussion: (1) removal of plaintiff's contributory negligence as an issue in the case; (2) denial of motions for a directed verdict and a motion for mistrial; (3) rulings as to admissibility of evidence; and (4) adequacy of the court's instructions.

Mrs. McGlothlin, along with two other ladies, were paying passengers in a Mercury automobile driven by defendant Harvey. The collision occurred about 6:37 a. m., December 19, 1966, at the intersection of Greenwich Road and Kellogg in Wichita when the occupants of the Harvey vehicle were on their way to work at the Cessna Aircraft Company. The Harvey car was proceeding south on Greenwich Road when it was struck by a Chevrolet pickup going west on Kellogg (U.S. Highway 54). The truck, owned by Schofield Bros. Pontiac, was being driven by defendant Wiles.

Kellogg is a four-lane thoroughfare with two lanes for westbound traffic, separated from the two eastbound lanes by a 30-foot medial strip. An access road runs parallel to Kellogg on the north side thereof and is separated from the westbound lanes by an island 14 feet wide with a chain link fence approximately 5 feet high in the center of the island. The posted speed limit for traffic on Kellogg at that point is 50 miles per hour. The main intersection is controlled by yellow flashing caution signals for east and west traffic on Kellogg and by red flashing lights for north and south traffic on Greenwich Road. In addition, there is a stop sign located just north of the intersection for southbound traffic approaching the intersection on Greenwich Road. At the time of the accident, the weather was clear and the intersection was brightly illuminated by street lights. Traffic at the intersection was heavy because of the proximity of several nearby aircraft plants.

According to testimony by the occupants of the Harvey automobile, when Harvey arrived at the intersection, he stopped at the stop sign and waited for westbound traffic on Kellogg to clear the intersection. Several vehicles in the outside westbound lane were stopped or moving very slowly with their right turn signals blinking, indicating their intention to turn north on Greenwich Road. Aware of the intended movement of the cars in the outside lane, Harvey pulled to the north edge of Kellogg, made a 'rolling stop,' and seeing nothing approaching in the inside lane, proceeded slowly across the outside lane. He glanced to the right for traffic from the west on Kellogg, and upon looking back to the left, saw the pickup operated by Wiles bearing down on him from the east. At that point, Harvey's vehicle was 'centered over the center of the inside lane' and he 'was looking right down the center of the pickup hood.' Harvey accelerated his automobile in an effort to get out of the way, but the pickup struck the left rear side and door of the Mercury. Plaintiff, who was seated on the left side of the back seat, sustained serious injuries, necessitating her being confined to a hospital for more than a month and being off work for nearly 12 weeks. The other two lady passengers who were riding in the back seat were also injured.

On the morning in question, defendant Wiles was driving the Schofield truck from his home in Augusta to his employer's place of business in Wichita. He testified he was in and out of the two westbound lanes all the way from Augusta, passing other cars. Although he did not watch his speedometer closely during the course of his journey, he tried to stay within the speed limit of 60 miles per hour until reaching the posted 50-mile-per-hour zone 3/4 of a mile east of the Kellogg-Greenwich Road intersection, at which point he slowed to 45 or 50 miles per hour and proceeded in the inside lane of traffic. Wiles estimated he slowed to 35 miles an hour as he approached the intersection and first saw the Harvey automobile. He immediately applied the brakes and at the time of impact, in his opinion, was going no more than 10 miles per hour. The pickup left 50 feet of skid marks up to the point of impact. A police officer testified a vehicle traveling 30 to 33 miles per hour would have stopped after leaving 50 feet of skid marks.

There was also evidence defendant Wiles had passed two other automobiles proceeding in a westerly direction on Kellogg immediately prior to the collision. The occupants of one of these cars said that when Wiles passed them about two miles east of the intersection he was traveling at least 70 miles per hour. According to the driver of the other automobile, Wiles was going about 65 or 70 miles per hour when he passed him three of four blocks east of the intersection. Defendant Harvey was unable to estimate precisely the speed of the pickup immediately before impact, but did say it 'was coming fast'-'at least 60 miles an hour.'

The three passengers in the Harvey automobile brought separate actions against Harvey and Wiles. The cases were consolidated for trial and judgments were entered for each of the passengers against both defendants. An appeal was perfected only with respect to the judgment rendered for the plaintiff McGlothlin.

Both defendants complain about removal of the issue of plaintiff's contributory negligence at the close of all the evidence. Defendant Wiles argues that the evidence at least presented a jury question as to whether or not plaintiff exercised reasonable care for her own safety. Defendant Harvey makes the rather novel argument that the issue of plaintiff's contributory negligence was improperly removed from the case because if there was any evidence of negligence on his (Harvey's) part, such evidence would also constitute evidence of contributory negligence on the part of plaintiff. Under the facts disclosed in the record, neither argument can be upheld.

The rule is well established in this jurisdiction that a passenger in a motor vehicle has the duty to exercise reasonable care for his own safety; that is, that care which a reasonably careful person would use for his own protection under the existing circumstances. (Kelty v. Best Cabs, Inc., 206 Kan. 654, 481 P.2d 980; Sander v. Union Pacific Rld. Co., 205 Kan. 592, 470 P.2d 748; Kendrick v. Atchison, T. and S. F. Rld. Co., 182 Kan. 249, 320 P.2d 1061; Beye v. Andres, 179 Kan. 502, 296 P.2d 1049; Henderson v. National Mutual Cas. Co., 166 Kan. 576, 203 P.2d 250; P.I.K. 8.91 and comment.)

In the recent case of Kelty v. Best Cabs, Inc., supra, we said that a passenger was negligent should he fail to warn the driver of approaching imminent danger. We held that the presence of a taxi cab standing in the driveway of a filling station and about to enter the street was not sufficient to suggest to the passenger in a vehicle proceeding on said street the presence of an imminent danger against which she should have warned her driver, and the trial court properly refused to submit an instruction regarding the passenger's contributory negligence. The opposite result, however, was reached in Sander v. Union Pacific Rld. Co., supra, where a train was approaching a railroad crossing.

Both defendants seek to support their position by what was said in Beye v. Andres, supra:

'* * * It is a general rule in this state that although the negligence of a driver is not imputed to a guest, or passenger, it nevertheless is the duty of a guest, or passenger, to exercise reasonable care for his own safety and, where he has the same opportunity as the driver to observe the dangerous conditions and circumstances and fails to take any precaution whatsoever for his own safety until it is too late, the matter of his contributory negligence is a proper...