Schmid v. Eslick

• Decision Date: 09 November 1957
• Docket Number: No. 40647,40647
• Parties: Theodore SCHMID, Appellant, v. Guy L. ESLICK, Appellee.
• Court: Kansas Supreme Court

Page 459

317 P.2d 459

181 Kan. 997

Theodore SCHMID, Appellant, v. Guy L. ESLICK, Appellee.

No. 40647.

Supreme Court of Kansas.

Nov. 9, 1957.

Syllabus by the Court

1. To constitute a joint enterprise between a passenger and a driver of an automobile, there must be a common purpose for which they jointly use and occupy the motor vehicle so as to give each the equal privilege and right to control and manage its operation.

2. Under the doctrine of joint enterprise whereby the negligence of one party is imputed to the other upon the relation of agency, there must be equal responsibility for the negligent operation of the vehicle, and there can be no equal responsibility unless there is equal privilege and right to direct and control its operation.

3. The mere association of persons riding together in an automobile having a common purpose in making a trip and a common destination, does not in itself give to a passenger equal privilege and right to control the method and means of operating the vehicle so as to constitute a joint enterprise.

4. In determining a passenger's equal privilege and right to control and automobile, the essential question is whether, under the facts and circumstances, there is an understanding between the parties that he has the right and is possessed of equal authority to prescribe conditions of use and operation.

5. Where trials are by a jury, it is the sole province of the court to decide questions of law as distinguished from questions of fact, and in so doing, is required to instruct the jury on all questions of law applicable to the theories of both parties so far as they are supported by any competent evidence. Where no evidence is presented, or the evidence presented is undisputed and is such that the minds of candid persons may not draw differing inferences and arrive at opposing conclusions with reason and justice, the matter becomes a question of law for the court's determination.

6. Where the evidence is undisputed and the facts and circumstances clearly show a passenger did not have equal privilege and right to control the operation of the vehicle, the issue of joint enterprise becomes a question of law for the court's determination and should not be submitted to the jury as a question of fact.

7. Generally speaking, as applied to automobile negligence cases, the term 'unavoidable accident' excludes and repels the idea of negligence, and refers to one which is not occasioned in any degree, either directly or remotely, by the want of such care or prudence as the law holds every person bound to exercise--that is, an occurrence which is not contributed to by the negligent act or omission of either party (following Knox v. Barnard, Kan., 317 P.2d 452).

8. The record examined and held: The trial court erred in giving Instructions No. 25 and 29 to the jury.

A. L. Foster, Parsons, was on the briefs for appellant.

A. R. Lamb, Coffeyville, argued the cause, and Paul A. Lamb, Coffeyville, was with him on the briefs for appellee.

FATZER, Justice.

This was an action for damages for personal injuries sustained in an automobile collision. Plaintiff (appellant) was riding in the front seat of a DeSoto sedan owned and driven by his neighbor Joe Blackburn when it collided with the rear of a Mercury sedan owned and driven by the defendant (appellee); both cars were traveling in the same direction. The jury returned a general verdict for the defendant and made special findings hereinafter detailed.

On October 15, 1955, plaintiff and his family and other friends gathered at the farm home of Charles 'Dude' Blackburn, a neighbor of rural Parsons, for a fish fry. About 6:45 p. m. plaintiff announced he was out of cigarettes and suggested they go to Parsons to get some. Plaintiff's car was first in the driveway, Dude Blackburn's car was second, and Joe Blackburn's (Dude's brother) DeSoto sedan was last. The testimony was undisputed that when plaintiff could not get his car out, he asked the Blackburns to move theirs, and Joe Blackburn suggested they take his car. The three men got in: plaintiff in the front seat next to the owner and driver, Joe Blackburn, and Dude Blackburn in the back seat. Joe Blackburn drove north on U. S. Highway 59, a paved north and south highway having a posted speed limit of 40 miles per hour where it forms the western boundary of the city of Parsons, and where it is also known as 32nd Street. Briggs Avenue is a narrow unpaved east-west street north of the south city limits, and intersects, but does not cross U. S. Highway 59, so that traffic proceeding west on it must either turn north or south at that point.

The defendant was driving west on Briggs Avenue and made a right turn onto U. S. Highway 59. At a point about 25 feet north of the intersection, the left front of the DeSoto collided with the right rear of the Mercury. It was dark when the collision occurred and the headlights of both cars were illuminated. There was no evidence that the brakes of either car were applied, either before or at the time of the collision. The Mercury proceeded north for about 75 feet from the point of impact and turned over in a ditch on the west side of the highway; the DeSoto remained upright and stopped about 75 feet north of the intersection. The plaintiff suffered severe injuries as a result of the collision not necessary here to detail.

Plaintiff's amended petition alleged that his injuries were caused by the negligence of the defendant in failing to stop before entering a through highway in violation of G.S.1949, 8-552, and that he entered the same when the DeSoto was approaching so closely as to constitute defendant's entrance a hazard; in failing to yield the right of way to the DeSoto, and in failing to keep a careful lookout ahead. The defendant in his amended answer denied his negligence and alleged that plaintiff's injuries were the result of an accident for which he was not responsible; that at the time of the collision the plaintiff and Joe Blackburn were engaged in a joint enterprise in deiving to Parsons for the purpose of obtaining food and refreshments; that Joe Blackburn was guilty of negligence, the proximate cause of the collision, in driving at excessive speed; in failing to keep a proper lookout ahead; in failing to slow down to avoid the collision; in failing to apply his brakes and bring his car under control so as to avoid running into the rear of the Mercury, and in failing to yield the right of way to the defendant, all of which negligence was imputable to the plaintiff. He also alleged negligence on the part of the plaintiff in failing to request Joe Blackburn to slow down and of failing to look ahead and observe the Mercury as it entered and traveled upon the highway.

At the trial plaintiff and Dude Blackburn testified that the Mercury did not stop before entering upon the highway; that as the DeSoto approached the intersection there was a car coming from the north about the same distance as the DeSoto was from the intersection; that the DeSoto veered to the right as it entered the intersection; that the Mercury, when coming onto the highway, made a big curve in turning north and the left front of the DeSoto collided with the right rear of the Mercury. The defendant testified that he stopped before entering U. S. Highway 59 at which time he saw the lights of a car, which later proved to be the DeSoto, about 600 feet south of the intersection; that he shifted into low gear, proceeded onto the highway and turned north, and was in the process of shifting into second gear when the impact occurred. Pictures of he automobiles taken after the collision were introduced in evidence, and they indicated the DeSoto hit the Mercury with a great impact while traveling at a high rate of speed. Evidence was introduced to prove contributory negligence on the part of the plaintiff, but the testimony was undisputed that immediately before the collision he called out, 'Look out, Joe. We are going to collide with him.' The defendant offered no evidence of joint enterprise but rested that defense on plaintiff's evidence of the purpose of the trip. At the close of the defendant's testimony plaintiff demurred on the ground there was no evidence to support the defense of joint enterprise or the defense of contributory negligence on the part of the plaintiff, which was overruled.

Among other instructions the trial court gave Instructions No. 25 and 29, which were objected to by the plaintiff. No 25 was as follows:

'You are instructed that if you shall find and believe from a preponderance of the evidence, that plaintiff sustained the injury or damage, as alleged by him in his petition, and you further find and believe from such evidence said injuries or damage was accidental, and was not the result of the negligence of the defendant, then the plaintiff cannot recover of the defendant in this case, and your verdict should be for the defendant.

'An unavoidable accident is an inevitable casualty, or the act of providence, or such unforeseen events, misfortunes, losses, acts or omissions, as are not the result of any negligence or the misconduct of either of the parties.'

Instruction No. 29 purportedly defined joint enterprise and instructed the jury that if it found that the plaintiff and Joe Blackburn at the time of the collision were engaged in a joint enterprise as therein defined, and if the negligence of Joe Blackburn was the sole proximate cause of plaintiff's injuries, then the plaintiff could not recover. The trial court submitted twelve special questions to the jury. The plaintiff objected to the following: Special question No. 8 for the reason that the defendant's amended answer pleaded an 'accident' and the special question required an answer based on the trial court's instruction defining 'unavoidable accident,' further, that the question was contrary to the evidence and the law of the case; No. 9 for the reason there was no evidence establishing...