Morlan v. Smith
| Decision Date | 06 April 1963 |
| Docket Number | No. 43099,43099 |
| Citation | 380 P.2d 312,191 Kan. 218 |
| Parties | L. D. MORLAN and Geneva Morian, his wife, Appellants, v. Robert J. SMITH, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In an action by parents to recover for the alleged wrongful death of their child when struck by an automobile driven by defendant, the jury returned a verdict for defendant and made special findings. Judgment for defendant was entered thereon, and plaintiffs appealed from the order overruling their motion for a new trial and specified a number of alleged trial errors. The record is examined and, because of errors relating to the admissibility of evidence and the giving of an instruction, fully narrated in the opinion, it is held that plaintiffs are entitled to a new trial.
Gerald L. Goodell, Topeka, argued the cause, Lester M. Goodell, Marlin S. Casey, Raymond Briman, Murray F. Hardesty, Wayne T. Stratton and Robert E. Edmonds, Topeka, and Steadman Ball, J. W. Lowry, William E. Stillings and Robert D. Caplinger, Atchison, with him on the brief, for appellants.
Terence D. O'Keefe, Atchison, argued the cause, Maurice P. O'Keefe, Sr., Dolan McKelvy and Maurice P. O'Keefe, Jr., Atchison, with him on the brief, for appellee.
This was an action by parents to recover for the alleged wrongful death of their six-year-old son as the result of being struck by an automobile driven by defendant.
The jury returned a verdict for defendant and made special findings. Judgment for defendant was entered thereon, and plaintiffs have appealed from the order overruling their motion for new trial, and specify a number of alleged trial errors.
The facts are not in dispute.
At about eleven o'clock a. m. on Thanksgiving Day, November 24, 1960, defendant, a resident of Atchison, was driving east on East 34th Street in the city of Topeka. His wife and baby were in the front seat beside him. They were on their way to spend the day with relatives who lived in the near vicinity. Plaintiffs lived on the south side of East 34th Street. The area was completely residential. Their six-year-old son, together with several other children, was playing in a neighbor's yard on the north side of the street about six or eight feet north of the curb. The street was paved and the day was dry and clear. A car was parked on the north side of the street, heading west, near where the children were playing. Another car was parked on the south side of the street, heading east, approximately in front of plaintiffs' residence which was located diagonally southeast from where the children were playing. As defendant drove in an easterly direction down the street he noticed the children playing and scuffling in the yard on the north side of the street. He did not sound his horn or give any other warning of his approach. As the children were playing plaintiffs' son apparently was hit in the stomach. He sort of 'doubled over' and started to run for home. In doing so he 'darted out' from behind the automobile which was parked on the north side of the street and was hit by the left front end of defendant's car. Defendant did not see the boy and did not know what had happened until he heard the 'thump.' He was driving between fifteen and twenty miles per hour. The boy died immediately. He was forty-six inches tall and the height of the car parked on the north side of the street was approximately sixty-two inches. Shortly after the accident police officers arrived on the scene to make an investigation.
The jury was given twenty-five instructions. Among them were the following:
'No. 9.
'Under the law of Kansas, a child of tender years is not required to exercise the same care and judgment as an adult, and in this connection, you are instructed that a child of six years of age cannot be held guilty of negligence which will prevent his parents from recovering damages for the child's death, if you find said death resulted from the defendant's negligence.'
'No. 17.
'You are instructed that a motorist driving on a street where children are at play is required to keep his motor vehicle under control and to so manage his car as to be able to turn aside or stop and avoid an accident in the light of the apparent risk that children may not exercise the care for their own safety and protection that adults are expected to exercise.
'No. 18.
'Where the driver of a motor vehicle knows of the presence of a child or children in, near, or adjacent to the street or highway or by the exercise of ordinary care should have known that children may be reasonably expected to be in the vicinity, you are instructed that the driver of such motor vehicle must anticipate that a child may suddenly cross the street or highway in front of his vehicle and must exercise the care which an ordinary, prudent man would exercise to avoid striking any child or children who might suddenly cross such street.'
Over plaintiffs' objection, the jury also was given this instruction:
'No. 11.
'You are instructed that the 1959 Supplement to the General Statutes of Kansas, 1949, provides as follows:
Right of Way at Crosswalks; Control Signals. (c) No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield.
'The General Statutes of Kansas for the year 1949, provides as follows:
Six special questions were submitted. They, and the answers thereto, are:
'1. Did William Douglas Morlan immediately prior to the accident understand and appreciate that injury or death was likely to ensue in crossing the streets, unless he was careful in avoiding moving vehicles?
'Answer: Yes.
'2. Do you find that William Douglas Morlan ran into East 34th Street from behind a parked automobile?
'Answer: Yes.
'3. At what rate, in miles per hour, was defendant driving his automobile at the time William Douglas Morlan ran into East 34th Street from behind a parked automobile?
'Answer: 16 to 20 miles per hour.
'4. After William Douglas Morlan appeared in front of defendant's car, did defendant have sufficient time to avoid striking him?
'Answer: No.
'5. If you should answer the last question in the affirmative, then state why defendant failed to avoid striking him?
'Answer:
'6. If you find the defendant guilty of negligence causing the death of William Douglas Morlan, state the act or acts of negligence of which the defendant was guilty.
'Answer:'
Among the points urged by plaintiffs for a reversal is that while one of the police officers was testifying he stated that 'no arrests were made.' It appears, however, that the statement was stricken and the jury was admonished to disregard it.
Another point made by plaintiffs is this: Based upon their investigation, the police officers made out an 'accident report.' Over pla...
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