Schenck v. Thompson

• Court: Kansas Supreme Court
• Writing for the Court: O'CONNOR; FATZER
• Citation: Schenck v. Thompson, 443 P.2d 298, 201 Kan. 608 (Kan. 1968)
• Decision Date: 13 July 1968
• Docket Number: No. 45091,45091
• Parties: Phyllis (Farlow) SCHENCK, Appellant, v. Frank THOMPSON, Appellee.

Page 298

443 P.2d 298

201 Kan. 608

Phyllis (Farlow) SCHENCK, Appellant, v. Frank THOMPSON, Appellee.

No. 45091.

Supreme Court of Kansas.

July 13, 1968.

Rehearing Denied Aug. 16, 1968.

Syllabus by the Court

1. Ordinarily, the existence of contributory negligence is a question of fact, it being for the jury to determine from the circumstances of each particular case whether the conduct of a party was such as would be expected of a reasonably prudent person. In ascertaining whether as a matter of law a plaintiff is contributorily negligent, the evidence and all inferences that may reasonably be drawn therefrom must be accepted as true and considered in the light most favorable to the plaintiff; and if the facts be such that reasonable minds might reach different conclusions therefrom, the issue of contributory negligence must go to the jury.

2. When a driver on a secondary or servient road approaches an intersection with which he is familiar, and knows the favored or through highway is protected by stop signs, it si held: that under the circumstances disclosed in the opinion, the fact that the driver's view of the stop sign may have been momentarily impaired is immaterial in respect to his negligence in failing to stop or otherwise recognize the preferential character of the favored highway.

3. Although a motorist may escape prosection under K.S.A. 8-513 for failing to stop at a lawfully erected stop sign at an intersection when the sign is not in proper position or sufficiently legible to an ordinarily observant person, the motorist is not relieved from exercising due care in approaching and proceeding through the intersection.

4. A driver has the duty of keeping a proper lookout for vehicles and objects in his line of vision which might affect his use of the highway. He is presumed to have seen those things which a person would and could see in the exercise of ordinary care under like or similar circumstances.

5. The statutory duties imposed on a driver approaching an intersection in which the favored highway is protected by stop signs are for the protection of drivers approaching the intersection from the opposite direction as well as those traveling on the favored highway.

6. As a generl rule a motorist must correlate his speed with his ability to stop his vehicle within the distance objects can be seen ahead. For a driver to be entitled to the benefit of the 'blinding-light' exception to this rule, the sudden change in his driving situation must be one he could not have reasonably anticipated, and he must have otherwise been exercising due care for his own safety.

7. In order for a plaintiff in a negligence case to be barred from recovery, his negligence must have contributed to and been a proximate cause of the injury.

8. Although proximate cause is ordinarily a question for the jury, it becomes a question of law where all the evidence upon which a party relies is undisputed and susceptible of only one inference.

9. If the evidence relied on by a plaintiff, viewed in its most favorable light, clearly discloses the injury was the direct result of plaintiff's negligence, or of the concurrent negligence of both the plaintiff and defendant, a question of law as to plaintiff's contributory negligence is properly presented for determination by the court.

10. The record is examined in an action to recover damages for injuries sustained in an automobile collision occurring at an intersection of a through highway and a servient road on which there were stop signs on both sides of the through highway, and the plaintiff, while driving on the servient road, approached the intersection at a speed of fifty to fifty-five miles per hour, failed to stop at the stop sign, applied her brakes, skidded through the intersection and struck defendant's automobile on the opposite side of the intersection, all as more particularly set forth in the opinion, and it is held: the trial court did not err in sustaining the defendant's motion for directed verdict on the basis that plaintiff as a matter of law was negligent and her negligence contributed to and was a proximate cause of the collision.

Charles F. Forsyth, Erie, argued the cause, and Robert K. Scovel, Independence, Clark M. Fleming, Erie, and John W. White, Chanute, with him on brief for appellant.

Robert L. Howard, Wichita, argued the cause, and Robert C. Foulston and Benjamin C. Langel, Wichita, and Jack L. Lively, Coffeyville, with him on brief for appellee.

O'CONNOR, Justice.

This is a damage action resulting from an automobile collision.

The collision occurred shortly after 2:00 a. m. on August 4, 1963, about one and three-quarters miles south of Independence, Kansas, at the intersection of an east-west country road and South Tenth Street Highway, a north-south thoroughfare. Traffic approaching the highway is controlled by stop signs located east of the intersection on Poor Farm Road and west of the intersection on Country Club Road. The plaintiff, Phyllis Farlow, now Schenck, driver of a 1961 Chevrolet Corvair, was traveling in a westerly direction on Poor Farm Road and approaching the intersection from the east. The defendant was driving his 1961 Pontiac Tempest station wagon in an easterly direction on County Club Road and approaching the intersection from the west.

Before going into the details of the collision, we pause to give the history of this already extensive litigation. The case has been tried to a jury on three occasions, each trial ending with the jury deadlocked and unable to reach a verdict. The first two trials were held in Montgomery county before the Honorable Warren B. Grant. Upon Judge Grant's request, the Honorable George W. Donaldson was assigned to try the case. After it was discovered the facts in the case had become the basis of a mock trial in the local high school, Judge Donaldson granted a change of venue to Neosho county, where the third trial was held before him in September 1966. After four days of trial and more than a full day of deliberation, the jury once again was unable to agree, and was discharged. On September 30, the defendant, pursuant to K.S.A. 60-250(b), renewed his motion for directed verdict. The motion was sustained on November 2, and plaintiff has appealed.

We return to the events leading up to the collision.

About 7:30 p. m. on the evening of August 3, the plaintiff picked up two of her friends, Mr. and Mrs. Robert Thornberry, and drove them to a small club south of Independence where Mr. Thornberry played in a dance band. Their route took them south on Tenth Street through the intersection at which the accident was later to occur. Plaintiff and Mrs. Thornberry remained at the club throughout the evening, and about 12:30 a. m., upon Mr. Thornberry's finishing his performance, plaintiff drove the Thornberrys back to Independence to the Dairy Delight for sandwiches and coffee. In so doing, she again drove through the South Tenth Street-Poor Farm Road intersection.

At the Dairy Delight plaintiff and the Thornberrys met two young men who asked plaintiff to take them out to the country to a place southeast of Independence known as 'Lover's Leap' where they were to meet someone. Plaintiff and the Thornberrys agreed, and the five proceeded toward Lover's Leap, with plaintiff driving. The Thornberrys rode in the front seat with plaintiff, and the two boys were in the back seat. Plaintiff again came to the intersection in question, turned left, and went east on Poor Farm Road. Upon arriving at their destination, which was four or five miles from the intersection, the two boys decided they wanted to go back to town; so, without stopping at Lover's Leap, plaintiff retraced her route on Poor Farm Road, driving in a westerly direction toward the intersection at which the collision later occurred.

The night was very dark and the road on which plaintiff was driving was hilly, there being approximately eleven hills between Lover's Leap and the intersection. As plaintiff approached the intersection from the east, traveling at a speed of fifty to fifty-five miles an hour, she came over the last hill, and without reducing her speed or stopping at the stop sign located twentyseven feet east of the intersection, drove into the intersection. Plaintiff applied the brakes after she was approximately fifteen feet past the stop sign and skidded in a straight line in her right lane of travel approximately fifty feet across Tenth Street into the defendant's automobile. Defendant had approached Tenth Street from the west on Country Club Road, and after either stopping or slowing at the stop sign located eighty-five feet west of the intersection, was in the process of making a left-hand turn onto Tenth Street. According to plaintiff's witnesses, the point of impact was approximately thirty-eight feet west of the intersection and twelve feet south from the north line of Country Club Road. Plaintiff's skid marks ceased about sixteen feet west of the west side of Tenth Street.

As a result of the collision plaintiff suffered severe injuries, as did the defendant and his wife. Mrs. Thornberry was killed, and plaintiff's other three passengers were also injured.

The trial judge, in sustaining the motion for directed verdict, filed a lengthy memorandum opinion, portions of which we quote:

'So, for the purpose of the motion before the court, the negligence of defendant is established and the only question to be determined is whether the evidence, viewed most favorably to plaintiff, compels the conclusion that her own negligence was a contributing cause of the collision and of her resulting injuries.

'Plaintiff drove down a hilly country road at 50 to 55 miles per hour, across an intersection, and into defendant's car on the other side of the intersection. She knew that the intersection was on her route and that there was a sign which required her to stop before entering the intersection, but she did not stop and there is no...