Oil Transport Co. v. Pash

• Decision Date: 06 April 1963
• Docket Number: No. 43128,43128
• Parties: OIL TRANSPORT COMPANY, Inc., Appellee, v. Richard PASH and Ova Pash, Appellants.
• Court: Kansas Supreme Court

Page 341

380 P.2d 341

191 Kan. 229

OIL TRANSPORT COMPANY, Inc., Appellee, v. Richard PASH and Ova Pash, Appellants.

No. 43128.

Supreme Court of Kansas.

April 6, 1963.

Syllabus by the Court

In a tort action for property damage resulting from a collision, wherein a tractor-trailer attempted to pass an automobile making a left turn at the intersection of U. S. highway 83 and Downie Drive in Garden City when both vehicles were within 100 feet of the intersection, as more fully reflected in the opinion, the record is examined, and it is held: The trial court did not err (1) in its orders overruling defendants' demurrer to plaintiff's evidence and overruling defendants' motion for a directed verdict; (2) in failing to grant a motion for judgment on answers to special questions; (3) in the instructions given or in refusing to give requested instructions; and (4) in its treatment of an improper remark made by plaintiff's counsel in his opening statement.

J. Eugene Balloun, Great Bend, argued the cause, H. Lee Turner, Great Bend, and Ray H. Calihan, Logan N. Green, Daniel R. Hopkins, and Ray H. Calihan, Jr., Garden City, with him on the briefs, for appellants.

Harrison Smith, Garden City, argued the cause and was on the briefs for appellee.

ROBB, Justice.

This is an appeal from the trial court's judgment overruling the separate motions of defendants for new trial, for judgment on answers to special questions, for judgment notwithstanding the verdict, and from its order overruling defendants' demurrer to plaintiff's evidence.

The parties stipulated that the collision here involved took place at the intersection of South Main, or U. S. highway 83, and Downie Drive, one of the entrances to Finnup Park in Garden City, and that the amount of damage to plaintiff's transport truck was $4,060.76 and the damage to defendants' automobile was $300.00.

Although no question in regard to the pleadings is raised, a short reference will be made thereto for clarity.

In its petition plaintiff alleged that the following acts of negligence on the part of defendant, Ova Pash, proximately caused plaintiff's damage: Her failure to keep a proper lookout; to make a proper turn; to keep her vehicle under control; to yield the right of way to plaintiff's vehicle before making a left turn; and her further failure to stop, turn her car aside or otherwise avoid the collision.

Defendants answered with a general denial and specifically stated Richard Pash was not negligent; that Ova Pash, driver of the car, was not acting in any capacity on behalf of Richard, Ova was not negligent, and if she were negligent, then plaintiff's driver was guilty of contributory negligence, which was the proximate cause of the collision, in that he was speeding in excess of thirty miles per hour, and attempting to pass on the left when both vehicles were within 100 feet of the intersection, in violation of G.S.1949, 8-540 which in pertinent part reads:

'* * * (b) No vehicle shall, in overtaking and passing another vehicle * * * be driven to the left side of the roadway under the following conditions: * * * (2) * * * when approaching within 100 feet of or traversing any intersection * * *.'

Plaintiff's driver was further guilty of contributory negligence in attempting to pass defendants' automobile in violation of G.S.1949, 8-539 after Ova had signaled for and was making a left turn. The statute reads in part:

'(a) The driver of a vehicle may overtake and pass upon the right of another vehicle which is making or about to make a left turn. * * *'

and he was also guilty for failure to sound his horn indicating his intention to pass defendants' car prior to turning out, passing to the left of defendants' car when it was not safe so to do, and failing to yield the right of way.

Defendant Richard cross-petitioned for damages to his car proximately caused by plaintiff's negligence as above stated. Plaintiff generally denied Richard's cross-petition and expressly denied contributory negligence on its part which was the proximate cause of the accident. Richard replied by a general denial to plaintiff's answer to the cross-petition.

Taylor, plaintiff's driver, and its first witness, testified, in substance, that where highway 83 changed from four to two lanes and a sign increased the speed from thirty to forty miles per hour, he began picking up speed. A car just ahead of him turned off the highway and defendants' car was the only other vehicle on the road. He checked in his front and rear vision mirrors and started to pull out for a pass. When he was approximately 200 feet from the intersection he saw defendants' car start to turn, he cut his wheels to the left, and applied his brakes 200 feet from the point of impact. He 'recollected' his speed was thirty-nine miles per hour at the point of impact. Defendants' car hit the right rear wheels of the tractor. He heard Mrs. Pash telling the investigating officer she had neither signaled nor looked in her rear view mirror. He pointed out to the officer there were no yellow lines indicating a no passing zone. His truck made skidmarks for a length of fifty-nine paces.

On cross-examination Taylor stated he was familiar with the traffic laws and with the various intersections of highway 83 and roadways leading into Finnup Park in Garden City. He was also familiar with G.S.1949, 8-540 regarding the overtaking and passing of another vehicle on the left when approaching within 100 feet of an intersection. He did not see any attempt by defendants to slow the speed of their car by applying their brakes. He applied his brakes because defendants' car was cutting into him. He slid about 200 feet. The point of impact was approximately nine feet south of the north edge of Downie Drive.

He further testified it would take about 900 feet for him to complete his pass since his speed was forty miles per hour and defendants' speed was thirty miles per hour. He had started to pass about 350 feet north of the intersection and had completed the pass at the intersection. He knew he had violated the state statute.

Dale Davis, a Garden City policeman, testified there were no yellow lines in the center of the highway. The point of contact on the plaintiff's tractor-trailer was ahead of the rear wheels of the trailer and the truck's skidmarks measured ninety-four feet before the point of impact. The truck wheels had left the highway 49.7 feet north of the north edge of Downie Drive and the vehicles came to rest in the ditch side by side.

The officer further testified that defendant, Ova Pash, stated to him that 'she didn't signal for a left hand turn. She didn't state anything about looking in her rear view mirror.'

Keith Denchfield, a deputy sheriff of Finney county, testified he located the sign reading 'begin 40 end 30' miles per hour at 980.2 feet north of the north curve line of Downie Drive.

Ova Pash, called as a witness by plaintiff, stated she gave a lefthand turn signal at the speed limit sign, which was three or four hundred feet north of the intersection, by just putting her hand out. She drew it back and 'rolled the window back up' because it was chilly and she had the heater on. Her speed was thirty miles per hour. She stepped on her brake lights when she was just 'below the sign.' She had seen the truck at the railroad tracks, had gone around it, and then saw it again in her rear view mirror when she was down near the filling station where the speed limit sign was located. She did not hear anything until she heard plaintiff's brakes when the truck was just ready to hit their car.

Richard demurred to plaintiff's evidence on the ground a cause of action was not stated against him. Ova demurred thereto on the grounds plaintiff's evidence affirmatively disclosed that Taylor, plaintiff's driver, was guilty of negligence when he attempted to pass defendants' car within 100 feet of an intersection, which negligence was a direct and proximate cause of the collision, and that the evidence showed plaintiff's driver had continuous notice of Ova's intention to turn for more than 100 feet prior to the intersection and his subsequent actions showed contributory negligence, which was a direct and proximate cause of the damage to all vehicles involved. Both demurrers were promptly overruled by the trial court.

Richard, the first witness for the defense, testified that Ova was driving about thirty miles per hour and the only other traffic at the time was plaintiff's truck. She signaled a left turn by the filling station and made a left turn into Downie Drive. When she had almost completed the turn, the truck crashed into their car. He did not hear any warning signal before the collision and the truck took the car right along with it.

Ova followed Richard on the stand and stated they were 'pretty well into Downie Drive' before the collision occurred. The screech of brakes was the first notice she had of the impending collision. She did not have time to look up to see where the noise came from. The back of the cab struck their car and the two vehicles came together in a sort of sliding motion. She had started braking their car at the speed sign and continued to do so on into the intersection. When the truck went into the ditch, their car was released. She told the investigating officer she did not make a left turn signal as she was actually turning at the intersection because after she had looked in the rear view mirror, she thought she was far enough ahead of the truck to make the turn. She had signaled some distance to the north. On cross-examination she stated she commenced making the turn about half way between the speed limit sign and Downie Drive. She did not know there was a truck within 'a hundred feet until he hit.' She did not keep her hand out continuously because it was cold. The truck was in the intersection the instant she heard the brakes.

Rebuttal testimony of Taylor lends nothing to the record affecting this...