Schallenberger v. Rudd

• Decision Date: 20 January 1989
• Docket Number: No. 61281,61281
• Citation: 244 Kan. 230,767 P.2d 841
• Parties: Deborah SCHALLENBERGER, Appellant, v. Gloria I. RUDD, Appellee.
• Court: Kansas Supreme Court

Page 841

767 P.2d 841

244 Kan. 230

Deborah SCHALLENBERGER, Appellant, v. Gloria I. RUDD, Appellee.

No. 61281.

Supreme Court of Kansas.

Jan. 20, 1989.

Syllabus by the Court

1. In a case involving a vehicle accident, the trial court has a duty to instruct the jury on the applicable traffic statutes.

2. A party is entitled to a jury instruction explaining his or her theory of the case where evidence is introduced in support thereof.

3. There was no error, under the facts of this case, in failing to give PIK Civ.2d 8.71A(c), which provides "wherever a usable path for bicycles has been provided adjacent to a roadway, bicycle riders shall use such path and shall not use the roadway." Sidewalks do not qualify as a "usable path" under K.S.A. 8-1590(c) so as to make mandatory their use by bicyclists.

4. The legislature has not prohibited the use of bicycles on sidewalks. In the absence of a specific statutory prohibition, users of bicycles, skateboards, tricycles, wheelchairs, baby carriages, toy wagons, and other human-powered conveyances may legally be used on the sidewalks with pedestrians.

5. Where there are traffic control signals, vehicular traffic facing a steady red light shall stop and remain stopped until an indication to proceed is shown, with the exception that, unless specifically prohibited by sign, vehicular traffic may cautiously turn right on a steady red light after coming to a complete stop but shall yield the right-of-way to pedestrians and users of bicycles, skateboards, tricycles, wheelchairs baby carriages, toy wagons, and other human-powered conveyances using the crosswalk.

6. There was error, under the facts of this case, in failing to instruct the jury that a bicyclist may legally use the sidewalk and, if the jury found the plaintiff to have been using the sidewalk, she had the right-of-way in using the crosswalk.

William M. Modrcin, of Morris & Larson, P.C., of Overland Park, argued the cause and Dallas D. Hainline, of the same firm, was with him on the brief for appellant.

Douglas M. Greenwald, of McAnany, Van Cleave & Phillips, P.A., of Kansas City, argued the cause and Clifford T. Mueller, of the same firm, was with him on the brief for appellee.

HERD, Justice:

This is a personal injury case arising out of a bicycle-automobile collision. Deborah Schallenberger appeals the Court of Appeals' affirmance of the district court's judgment for Gloria Rudd.

The facts from which this controversy arose are as follows. Schallenberger was injured when she was struck by a car as she was riding a bicycle. She testified she was proceeding west on a sidewalk on the south side of 87th Street in Lenexa when she came to the Lackman Road intersection. She stopped at a red light. When it turned green, she observed a car driven by Rudd to her left which was northbound on Lackman Road. The car slowed as if to stop, and Schallenberger proceeded to cross the intersection on the crosswalk. Rudd, who was looking west for eastbound traffic on 87th Street, then accelerated and turned right on the red light, hitting Schallenberger on her bicycle and causing her serious injury.

Gloria Rudd testified she was making a proper right turn on a red light when Schallenberger sped in front of her. She testified Schallenberger was not riding on the sidewalk, but was cycling westward against the traffic in the furthest lefthand lane of 87th Street. Since Rudd acknowledged she did not look to her right, she was dependent upon evidence from an accident reconstruction expert to present her version of the facts.

Schallenberger testified she had previously walked in the area and was aware of the heavy traffic on 87th Street. She knew there was no shoulder, path, or sidewalk on the north (right) side of the street usable for bicycles. She also knew a sidewalk ran adjacent to 87th Street on the south side with sloping ramps at intersections which would allow her to ride along the sidewalk without dismounting. She therefore took this path as the safest.

The jury found both parties to be 50% at fault and the district court thus awarded judgment to Rudd pursuant to K.S.A.1987 Supp. 60-258a. The Court of Appeals affirmed. --- Kan. ----, 758 P.2d 754. We granted review.

The issue in this case is whether people are prohibited from riding bicycles on sidewalks in Kansas. Schallenberger claims the trial court erred in refusing to give her proposed jury instructions, which were patterned after traffic statutes. Proposed instruction number 9(a) defines a "vehicle" and proposed instruction number 17, which is PIK Civ.2d 8.71A(c), instructs that bicyclists are required to use bicycle paths when provided. These instructions will be discussed in detail later.

First, let us review the law relevant to this case regarding jury instructions. In a case involving a vehicle, the trial court has a duty to instruct the jury on the applicable traffic statutes. Wegley v. Funk, 201 Kan. 719, 723, 443 P.2d 323 (1968). A party is entitled to an instruction explaining his theory of the case where there is evidence to support it. McGraw v. Sanders Co. Plumbing & Heating, Inc., 233 Kan. 766, 771, 667 P.2d 289 (1983). However, refusing to give an instruction is not error when its substance is adequately covered in other instructions. Black v. Don Schmid Motor, Inc., 232 Kan. 458, 474, 657 P.2d 517 (1983). A court should not by its instructions unduly emphasize one aspect of a case. Timsah v. General Motors Corp., 225 Kan. 305, 315, 591 P.2d 154 (1979).

The trial court instructed the jury pursuant to the following statutes: K.S.A. 8-1587, which provides that every person riding a bicycle upon a roadway is subject to the duties applicable to the driver of a vehicle; K.S.A. 8-1575, which provides that no person shall drive any vehicle upon a sidewalk; and K.S.A. 8-1590(a), which provides that every person operating a bicycle upon a roadway shall ride as near to the right side of the roadway as practicable.

The court thus treated the bicycle as a vehicle and rendered its use on a sidewalk, as well as its use on the street against the flow of vehicular traffic, illegal. Hence, the jury was instructed that Schallenberger was in the wrong whether she was on the sidewalk, as she contends, or on the left side of the street, as Rudd contends. This was error as it mandated the jury to find Schallenberger at fault.

Schallenberger, in her enthusiasm to legitimize her riding on the sidewalk, first incorrectly argues K.S.A. 8-1590(c) is applicable. It provides: "Wherever a usable path for bicycles has been provided adjacent to a roadway, bicycle riders shall use such path and shall not use the roadway." Schallenberger argues a sidewalk is such a "usable path" and justifies the giving of PIK Civ.2d 8.71A(c), her proposed instruction 17, which follows K.S.A. 8-1590(c). The trial court correctly found that a sidewalk is not a "usable path" for bicycles mandated by K.S.A. 8-1590(c). Instead, it found the legislature intended mandatory bicycle use of only those paths set aside...