Smithson v. Dunham

Decision Date08 June 1968
Docket NumberNo. 45046,45046
Citation441 P.2d 823,201 Kan. 455
PartiesWayne G. SMITHSON, Executor of the Will of Marvella Smithson, Deceased, Wayne G. Smithson, Individually, Appellants, v. Dillard H. DUNHAM, Appellee.
CourtKansas Supreme Court

Syllabus by the Court

In an action for wrongful death, brought under the provisions of K.S.A. 60-1901, the trial court did not err in entering summary judgment for defendant on the undisputed facts and circumstances fully set out in the opinion.

David H. Heilman, Council Grove, argued the cause and was on the briefs for appellants.

Robert M. Siefkin, Wichita, argued the cause, and Leo Newell Johnson, Council Grove, and George B. Powers, John F. Eberhardt, Stuart R. Carter, Robert C. Foulston, Malcolm Miller, Robert N. Partridge, Richard C. Harris, Gerald Sawatzky, Donald L. Cordes, Robert L. Howard, Charles J. Woodin, Mikel L. Stout, Benjamin C. Langel, Phillip S. Frick, Jerry G. Elliott, John E. Foulston, Stanley G. Andeel, and John E. Neal, Wichita, were with him on the briefs for appellee.

KAUL, Justice:

This is a wrongful death action under the provisions of K.S.A. 60-1901. Appellants have appealed from a summary judgment in favor of defendant-appellee.

The tragic accident, out of which this lawsuit arose, occurred at an open uncontrolled, rural intersection of two county roads in Morris County at approximately 5:45 p.m. on August 13, 1965. The intersection is located about three miles north and one-half mile west of Burdick. It is formed by the intersection of what is known as Burdick road, a north-south blacktopped county road, and an east-west county road.

At the time of the accident William Smithson was driving a 1960 Falcon station wagon, owned by his father, Wayne G. Smithson, in a northerly direction on Burdick road. William's mother, Narvella Smithson, the decedent, occupied the right front seat beside William. William, fifteen years of age at the time, was the holder of a restricted driver's license, issued under the provisions of K.S.A. 8-237.

Dillard H. Dunham, defendant-appellee, was driving his 1947 Studebaker pickup truck in an easterly direction on the dirt or gravel intersecting road.

At the time of the accident Wayne Smithson had a 'star route contract' for carrying United States mail. On the evening in question, Wayne wanted to go fishing with a friend so he asked his wife, the decedent, and his son, William, to make the mail run for him. Wayne left home to go fishing about 4:00 p.m. The evening mail run ordinarily commenced about 5:00 p.m., the time necessary to complete the run is not shown in the record.

Plaintiffs' petition alleged the accident and resulting death of decedent was proximately caused by the negligence and gross and wanton negligence of defendant. The claim of gross and wanton negligence was abandoned in the course of pretrial proceedings.

In his answer defendant (Dunham) alleged the negligence of William was either the sole or proximate cause of the accident and that his negligence was imputed to decedent by reason of William being an under age driver and for the further reason that William and his mother were engaged in a joint enterprise.

After the pleadings were filed, the parties proceeded with pretrial matters. Interrogatories were submitted to and answered by Wayne G. Smithson and defendant. Depositions were taken from defendant, William, Wayne and Don Reed, a trooper for the Kansas Highway Patrol. At this juncture, defendant filed a motion for summary judgment, the proceedings in connection with the hearing thereon are narrated in the record as follows:

'On February 3, 1967, defendant-appellee's motion for summary judgment was heard by the trial court. At such hearing the parties agreed that the accident occurred on August 13, 1965, at the intersection of two county roads in Morris County, Kansas, and that the roads had no traffic control devices or signs on them, and that the intersection was located approximately one-half mile west and three miles north of Burdick, Kansas.

'Appellant's attorney then asked appellee's counsel to state the facts to the court and added that if there were some facts to which appellant could not agree, he would interrupt the statement of facts to so indicate. Appellant's attorney then added, 'I don't think the facts are particularly in dispute.'

'The parties then agreed that appellant's 1960 Falcon station wagon was proceeding north on a blacktop county road called the 'Burdick Road' at approximately 55 miles per hour; that appellee was proceeding east on a graveled county road in a Studebaker pickup truck at approximately 15 to 20 miles per hour; that the front of the Falcon station wagon struck the right front side of the pickup; that the driver of appellant's station wagon was William Smithson who was 15 years old at the time; that he was accompanied by his mother, Marvella Smithson, an adult, and that the eastbound truck was being driven by appellee Dillard Dunham. The parties also agreed that the testimony as to how the accident occurred was contained in the depositions of William Smithson and Dillard Dunham.

'Appellee's attorney then stated the questions of law to be determined as follows:

'Now, I think we should be able to agree that one of the questions for Your Honor to determine is whether or not William Burns Smithson was guilty of negligence as a matter of law. I think that is the No. 1 question to decide. The second question I think Your Honor has to decide is the type of passenger that Mrs. Smithson or Marvella Smithson was in the vehicle. And under this point, it would seem to me that Your Honor is going to have to decide that if you find that William Smithson was guilty of negligence as a matter of law, whether at this point the negligence of William Smithson is imputed to Marvella Smithson.

'Appellant's counsel made no objections to the statements of agreed facts and issues presented to the trial court by appellee's attorney.'

The trial court sustained defendant's motion without stating its reasoning and directed that judgment be entered for defendant.

Since the parties stipulated that the testimony, as to how the accident occurred, was contained in the depositions of William and that of defendant, we pause at this point to relate further relevant testimony contained therein.

Defendant testified that he was traveling between fifteen and twenty miles per hour when he entered the intersection. He looked both ways several times, he does not remember whether it was twice or three or four times, before entering the intersection. He did not see the Smithson station wagon. He later discovered there was a blind spot, 100 to 200 feet from the intersection, which he was not aware of on the day of the accident. Just prior to entering the intersection he was looking ahead.

William testified that he was driving fifty-five miles per hour as he approached the intersection and does not remember whether he slowed down or looked for traffic. He was ten to fifteen feet from the intersection when he first saw defendant's pickup truck entering from the west. He could give no reason why he did not see it before. He testified there was nothing to restrict his vision except a couple of little trees and grain in an adjacent field, which he later admitted did not obstruct his view.

As indicated by the statements of counsel at the hearing on the motion for summary judgment, even though this is a negligence action, there appears to be no dispute as to the facts. The issue before the trial court, as well as on appeal, was whether, under the facts established, William was guilty of negligence as a matter of law and if so was his negligence imputed to decedent so as to bar recovery for her death.

Appellants' counsel in his brief and on oral argument before this court vigorously argues that in an automobile action, where the parties charge each other with negligence and contributory negligence, each party is entitled to a trial by jury. We agree with counsel that the proposition stated is ordinarily the case. The instances are relatively rare when the facts are such that a court should say that negligence has been established as a matter of law by summary judgment or at any other stage of the litigation. It is only when conduct can be said as a matter of law to have fallen below the standard of a reasonably prudent person that the question of contributory negligence may be taken from the jury and determined by the court. (Shehi v. Southwest Rentals, Inc., 199 Kan. 265, 428 P.2d 838; Gingham v. Hillcrest Bowl, Inc., 199 Kan. 40, 427 P.2d 591; Lawrence v. Kansas Power & Light Co., 167 Kan. 45, 204 P.2d 752; 3 Barron and Holtzoff, Federal Practice and Procedure, Summary Judgments § 1232.1)

Usually, questions as to negligence or contributory negligence are not subject to determination on summary judgment because the evidence and inferences, which might be implied therefrom, construed in the most favorable light against the movant, as required, leave in question a genuine issue as to some material fact. In this regard we have strictly adhered to the admonition of the statute (K.S.A. 60-256(c)) in limiting the disposition of litigation by summary judgment. (Supreme Petroleum, Inc. v. Briggs, 199 Kan. 669, 433 P.2d 373; Shehi v. Southwest Rentals, Inc. supra; Secrist v. Turley, 196 Kan. 572, 412 P.2d 976; Brick v. City of Wichita, 195 Kan. 206, 403 P.2d 964.)

With respect to the negligence of William the facts are not in dispute, the question is simply whether they establish his negligence as a matter of law. In other words, do the facts show that William's conduct can be said as a matter of law to have fallen below the standard of a reasonable prudent person.

By William's own testimony defendant's pickup was first to enter the intersection. William first saw defendant's pickup in the intersection when he (William) was ten or fifteen feet to the south. William also testified that he drove...

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