Scogin v. Nugen

• Decision Date: 24 January 1970
• Docket Number: No. 45531,45531
• Citation: 464 P.2d 166,204 Kan. 568
• Parties: Billy W. SCOGIN, Appellant, v. Harold S. NUGEN and Carolyn S. Napier, Appellees.
• Court: Kansas Supreme Court

Page 166

464 P.2d 166

204 Kan. 568

Billy W. SCOGIN, Appellant, v. Harold S. NUGEN and Carolyn S. Napier, Appellees.

No. 45531.

Supreme Court of Kansas.

Jan. 24, 1970.

Syllabus by the Court

1. A police officer operating under the privileges and exemptions granted to emergency vehicles may assume other vehicles using the highway will yield the right of way as required by law. However, he is not permitted to act blindly on that assumption if it should be apparent to him in the exercise of reasonable care that the other driver is continuing to occupy the same lane of traffic and has failed to yield the right of way.

2. A plea of guilty to a traffic charge growing out of an accident is an admission of the acts which were the basis of the charge. The plea of guilty may be shown in a civil action growing out of the same accident as an admission of the acts charged.

3. When answers to special questions by a jury indicate the plaintiff committed negligence which was a direct and contributing cause of his injury and a general verdict is rendered in favor of the defendant prejudicial error cannot be predicated on the exclusion of evidence tending to prove defendant was also negligent.

4. The privileges extended to a police officer under K.S.A. 8-505(c) as the operator of an authorized emergency vehicle do not relieve him from the duty to drive with due regard for the safety of all persons using the highway. He must use such care as a prudent man would exercise in the discharge of official duties of a like nature under like circumstances.

5. A verdict should not be set aside and a judgment based thereon should not be reversed by reason of the admission of evidence admissible for a limited purpose only unless there appears of record an objection so stated as to make clear the specific ground of the objection and a request to restrict the evidence to its proper scope.

6. The number and form of special questions are subject to the control of the trial judge and he should give such explanation or instruction as may be necessary to enable the jury to give answers to the interrogatories and to render a general verdict.

7. Failure of the jury to answer a special question is not prejudicial error when no request is made to require an answer and the general verdict is consistent with those special questions answered.

Russell E. Cranmer, Wichita, argued the cause and was on the brief, for appellant.

Kenneth H. Hiebsch, Wichita, argued the cause and was on the brief, for appellee, Harold S. Nugen.

FROMME, Justice.

Billy W. Scogin brought this action against Harold S. Nugen and Carolyn S. Napier for personal injuries received in a vehicular accident. Officer Scogin was a motorcycle policeman pursuing a speeding motorist when the accident occurred. The case was tried to a jury which returned a verdict against the plaintiff, Scogin, and in favor of both defendants. Plaintiff appealed but later dismissed the appeal as to Carolyn S. Napier.

There is little dispute over the facts disclosed by the evidence. The accident occurred on Seneca Street which is a four lane boulevard running north and south in Wichita, Kansas. Officer Scogin was parked on a side street to the east of Seneca and was clocking the speed of motorists. He clocked a motorist exceeding the speed limit, waited for four cars to pass him, then entered Seneca Street and headed north. He turned on his siren and red light. He passed two northbound vehicles and attained a speed of 35 miles per hour. He was travelling near the center of the four lane street. The Napier vehicle was ahead of him and travelling north. A vehicle driven by Harold S. Nugen was approaching from the north. Officer Scogin was 50 feet behind the Napier car when he noticed both the Nugen and the Napier vehicles were continuing in a straight course. Both of these vehicles were close to the center line. The Napier car was slowing down but neither car was yielding the inside traffic lane. The outside lanes were clear of immediate traffic. Officer Scogin applied the rear brake on his motorcycle, slowed his speed, then elected to go between the two cars. He estimated the clearance to be 36 inches. The handlebars of the motorcycle measured 39 inches from tip to tip.

There was evidence from which it might be reasonably inferred that officer Scogin could have safely passed the Napier vehicle on the outside lane by applying the brakes to both wheels of his motorcycle and turning into the right lane of traffic.

In going between the Nugen and Napier vehicles he intentionally laid his motorcycle into the side of the Napier car. There was evidence his only contact with the Nugen vehicle came when a tire of the Nugen car ran over a tire of the motorcycle. Officer Scogin and motorcycle passed between the cars but both man and cycle were spilled out of control in the street behind the Nugen vehicle. Serious injuries resulted.

Defendant Nugen testified he had no impairment of vision or hearing. At the time of this accident his car windows were up. The car radio was not on. He did not hear the siren or see the red light. He first noticed the officer when he was six feet away and headed right toward him on his left. The motorcycle passed him before he could react. He felt no impact between the motorcycle and his car.

Appellant Scogin contends this evidence discloses as a matter of law that he is entitled to recover damages.

The evidence discloses appellant was the operator of an authorized emergency vehicle as defined in K.S.A. 8-501. It further discloses the defendant Nugen did not yield the right of way as required in K.S.A. 8-554. He did not drive to the right-hand curb and stop to allow the officer to pass. However, the act does not relieve an operator of an emergency vehicle from a duty to use proper care.

K.S.A. 8-505(e) provides:

'The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his ordinary negligence or reckless disregard for the safety of others.'

Under the pre-trial conference order an issue was raised by defendant as to whether to officer was negligent in a manner which was a direct cause of his injuries. Defendant contended the officer failed to slow up or maneuver in response to other vehicles visible to him in the street so as to avoid the collision. The jury found the officer was negligent in that 'he was aware of traffic conditions at the time and did not use proper judgment to avoid impending accident'.

A driver, absent knowledge to the contrary, may assume other vehicles using the highway will obey the rules of the road but he is not permitted to act blindly on that assumption when it is apparent the other driver is continuing on the wrong side of the road. (Gard v. Sherwood Construction Co., 194 Kan. 541, 400 P.2d 995; DeGraw v. Kansas City & Leavenworth Transportation Co., 170 Kan. 713, 228 P.2d 527.)

A police officer operating under the privileges and exemptions granted to emergency vehicles may assume other vehicles using the highway will yield the right of way as required by law. However, he is not permitted to act blindly on that assumption if it should be apparent to him in the exercise of reasonable care that the other driver is continuing to occupy the same lane of traffic and has failed to yield the right of way. In such case negligence, contributory negligence and proximate cause remain questions of fact for the jury. (See Duran v. Mission Mortuary, 174 Kan. 565, 258 P.2d 241.)

The trial court excluded evidence that the defendant had pled guilty to a traffic ticket for failing to yield the right of way. The charge arose out of the circumstances of plaintiff's accident. In excluding this evidence the trial court gave the following reasons for the exclusion:

'The evidence proffered concerning the traffic ticket and fine paid by defendant Nugen is overruled. The Court has heard counsel's statements on this matter and has reviewed the depositions concerning same and finds that the signature of the defendant Nugen on the back of the traffic ticket was not a genuine admission of guilt of negligence, but what is merely a part of the fine paying process * * *.'

Appellee justifies the exclusion of the plea of guilty on the basis of citations from New York and Ohio. He argues the plea and the payment of a traffic fine do not constitute admissions when they result from a 'cafeteria system' for taking care of minor traffic tickets. He argues the cost and inconvenience of defending against a traffic ticket are the practical motivations for such a plea. Economic factors dictate a plea be entered rather than to have the expense and inconvenience of defending against the ticket.

This may be true and in rebuttal a defendant may so testify. The argument is one affecting the weight of the evidence and might properly be presented to a jury. We cannot say this justifies exclusion of a plea of guilty if it is otherwise admissible under our rules of evidence.

Under our rules of evidence as codified any evidence having a tendency in reason to establish a material fact is relevant and may be admitted in evidence. (See K.S.A. 60-401 et seq.) Some specific exclusions are set forth in the code, such as hearsay, but admissions of a party are proper under K.S.A. 60-460(g). It reads as follows:

'Admissions by parties. As against himself a statement by a person who is a party to the action in his individual or a representative capacity and if the latter, who was acting in such representative capacity in making the statement;'

In Musick v. Enos, 95 Kan. 397, 148 P. 624, it was held:

'* * * The record of a plea of guilty by the defendant to a criminal charge for the same assault was properly received in evidence as an admission. * * *' (p. 398, 148 P. at p. 625)

In Federal Deposit Ins. Corp. v. Cloonan, 165 Kan....