Shawnee Tp. Fire Dist. No. 1 v. Morgan, 48087

• Decision Date: 22 January 1977
• Docket Number: No. 48087,48087
• Citation: 221 Kan. 271,559 P.2d 1141
• Parties: SHAWNEE TOWNSHIP FIRE DISTRICT NO. 1, Appellant, v. Roger F. MORGAN, Appellee.
• Court: Kansas Supreme Court

Page 1141

559 P.2d 1141

221 Kan. 271

SHAWNEE TOWNSHIP FIRE DISTRICT NO. 1, Appellant, v. Roger F. MORGAN, Appellee.

No. 48087.

Supreme Court of Kansas.

Jan. 22, 1977.

Syllabus by the Court

1. The law relative to emergency vehicles is stated and applied.

2. K.S.A.1971 Supp. 8-505(c) (now K.S.A. 8-1506(b)) provides the exemptions granted to an authorized emergency vehicle shall apply only when such vehicle is making use of an audible signal meeting the requirements of K.S.A. 8-5,102(c) (Corrick) (now K.S.A. 8-1738(d)), and visual signals meeting the requirements of K.S.A. 8-597(c) (Corrick) (now K.S.A. 8-1720).

3. It was not the intention of the legislature by the enactment of K.S.A. 8-5,102(c) (Corrick) (now K.S.A. 8-1738(d)) to deny an otherwise qualified emergency vehicle enumerated privileges and immunities for failure to obtain from the department of motor vehicles of the highway commission, approval of the type of siren utilized by the emergency vehicle.

4. A change in phraseology or the deletion of a phrase in amending or revising a statute raises a presumption that a change of meaning was intended by the legislature.

5. The phrase 'ordinary negligence' contained in K.S.A. 8-505(e) (Corrick), which was deleted by amendment in 1970 (K.S.A.1971 Supp. 8-505(e)), and now K.S.A. 8-1506(d)), is no longer applicable to the driver of an emergency vehicle and should not be used in instructions to the jury in actions involving emergency vehicles.

6. The test of due care as applied to the driver of an emergency vehicle is whether with the privileges and immunities provided by statute he acted as a reasonably careful driver.

7. In an action involving emergency vehicles the jury should be instructed that the driver of an ordinary vehicle is under a duty to yield the right of way to an emergency vehicle by immediately pulling parallel and as close as possible to the right edge or side of the road, clear of any intersection, and remaining there until the emergency vehicle has passed.

8. A person using a public street or highway has the right to assume that other drivers will obey the law. He is entitled to rely on this assumption until he has knowledge to the contrary.

9. When sufficient evidence is admitted on the issue of intoxication as a contributing factor in an accident, a proper instruction should be submitted to the jury.

10. We have examined the record in an action involving an emergency vehicle and find the district court erred in using the phrase 'ordinary negligence' in the instructions, in failing to instruct on the test of due care for the driver of an emergency vehicle, in failing to instruct on the duty of a motorist to yield to an emergency vehicle, and in failing to instruct on intoxication.

Edward M. Boyle of Payne & Jones, Chartered, Olathe, argued the cause and was on the brief for appellant.

Barton Brown of Wallace, Saunders, Austin, Brown & Enochs, Overland Park, argued the cause, and Douglas Lancaster of Wagner, Leek & Mullins, Shawnee Mission, was with him on the brief for appellee.

OWSLEY, Justice:

This is an action for damages which resulted from a collision between a fire truck owned by Shawnee Township Fire District No. 1 and an automobile owned an driven by Roger F. Morgan. The collision took place at 87th and Pflumm Road in Johnson County, Kansas. The plaintiff fire district sued to recover property damage. Defendant counterclaimed for property damage and personal injury. The jury returned a verdict against both parties and plaintiff appeals.

On March 6, 1972, a fire occurred in the vicinity of 79th and Lackman Road in Johnson County, Kansas. Plaintiff's driver, Paul Bishoff, responded in plaintiff's fire truck to a call for additional equipment at the fire. As Bishoff departed the Lenexa Fire Station, he turned left to Pflumm Road, then turned right right and proceeded north on Pflumn. The speed limit on Pflumm was 25 miles per hour. The intersection of 87th and Pflumm was controlled by stop signs protecting 87th Street. At the time of the accident, 87th Street, running east and west, was a through street with a speed limit of 35 miles per hour.

As Bishoff approached the intersection he looked east and saw nothing. He could see 900 feet east on 87th. He then looked west and did not look east again before entering the interesection. Defendant was westbound on 87th and struck the fire truck on the rear right side. The impact rolled the fire truck and it came to rest on its top with its front facing northeast.

Plaintiff contended defendant was negligent in the following particulars:

1. Failure to maintain a proper lookout.

2. Failure to keep his vehicle under control so as to avoid an accident.

3. Failure to yield the right of way to an emergency vehicle.

4. Traveling in excess of the posted speed limit.

5. Traveling in excess of speeds reasonable and safe under existing circumstances.

6. Driving while intoxicated.

Defendant denied these allegations and asserted plaintiff was negligent in the following particulars:

1. Failure to keep his vehicle under control so as to avoid an accident.

2. Failure to maintain a proper lookout.

3. Failure to yield the right of way to defendant.

4. Traveling in excess of speeds reasonable and safe under existing circumstances.

At trial, plaintiff introduced testimony as to the speed of defendant's car by developing evidence of tire skid marks. These skid marks measured 79.5 feet for the left front tire, 61 feet for the left rear tire, 65 feet for the right front tire and 61.5 feet for the right rear tire. Skid tests were conducted by the Johnson County sheriff's office and the Kansas Highway Patrol. At 35 miles per hour the average skid was 49 feet. An accident reconstruction expert tetified that based upon all the relevant factors which should be considered, defendant's car was going 52 miles per hour as it began to skid. Maximizing all factors in favor of defendant, the speed was reduced to 43.5 miles per hour; maximizing all factors in favor of plaintiff, the speed increased to 63.3 miles per hour.

Defendant testified he was going only 30 to 35 miles per hour as he traveled west on 87th. Defendant's wife, who was a passenger in the car, testified she had no opinion as to the speed of the car, but she knew it was not going too fast.

Several witnesses testified to the speed of the fire truck as it went through the intersection. A nearby apartment dweller testified she stepped out onto her balcony, which faced Pflumm Road, when she heard the siren. She watched the fire truck approach the intersection and almost come to a stop before proceeding into the intersection. Greg Garrett, who was westbound on 87th and had turned left to proceed south on Pflumm, estimated the speed of the fire truck to be about 25 miles per hour when it was 75 to 125 feet from the intersection. He also stated the truck slowed down before proceeding into the interestion. The driver of the truck testified he was in second gear as he approached the intersection and was reducing speed. Top speed in this gear was 15 miles per hour and he reduced his speed to 10 miles per hour as he entered the intersection.

Defendant testified the truck was traveling 30 to 35 miles per hour, but testified he did not see the vehicle until it was about 100 feet from the intersection and didn't realize it was a fire truck until it was immediately in front of him. Defendant's wife did not see the truck until a second before the collision and she gave no estimate of its speed.

Evidence included testimony concerning the operation of the siren on the fire truck. One witness testified she was following the fire truck as it proceeded toward the scene of the collision. She stated she heard the siren at least a block away and at the time of the impact she was between one and one-half and two blocks behind the fire truck and could hear the siren. The apartment dweller testified she heard the siren when the truck was about 500 feet away and the noise became even louder as the truck passed the apartment complex. Garrett stated he did not hear the siren until he was approximately 100 feet south of the intersection and at that time the fire truck was 25 feet from him, or 125 feet south of the intersection. When he observed the fire truck he pulled over to the right side of the road and stopped. The driver of the emergency vehicle testified he ran the siren continuously from the fire house until the collision occurred. He indicated the siren was freewheeling and would run for a block after it was wound. By running it up and down in this manner it would catch more attention. He testified the siren was audible for 500 feet or more, and he noticed that as he headed north on Pflumm, cars coming toward him pulled off onto the side of the road.

Both the Morgans testified they never heard the siren. They also stated the windows of the car were rolled up and the air conditioner and radio were on.

Bishoff testified the emergency lights, which consited of a beacon ray and two pancake lights on the roof, were in operation from the station to the accident site. Garrett confirmed the lights were on. No testimony disputed the use of emergency lights.

Plaintiff introduced testimony to establish that defendant was intoxicated at the time of the accident. Ambulance driver Leslie Leford assisted defendant onto a stretcher after the accident and noted defendant was uncooperative and belligerent. Leford detected the odor of alcohol on defendant. He also noticed two small plastic glasses on the floorboard of defendant's car. Leford's assistant testified that in his judgment there was a strong odor of alcohol in the ambulance, which he felt was emanating from defendant. The officer in charge of investigating the accident reported defendant's condition as normal, but he did recall persons at the scene had smelled alcoholic beverages. For this reason he had an officer proceed to the hospital and talk to defen...