Stephenson v. Wallis

• Decision Date: 11 May 1957
• Docket Number: No. 40446,40446
• Citation: Stephenson v. Wallis, 181 Kan. 254, 311 P.2d 355, 72 A.L.R2d 1 (Kan. 1957)
• Parties: , 72 A.L.R.2d 1 George W. STEPHENSON, Appellant, v. Walter W. WALLIS, Appellee.
• Court: Kansas Supreme Court

Page 355

311 P.2d 355

181 Kan. 254, 72 A.L.R.2d 1

George W. STEPHENSON, Appellant, v.Walter W. WALLIS, Appellee.

No. 40446.

Supreme Court of Kansas.

May 11, 1957.

Syllabus by the Court

1.The record examined in an appeal from the verdict of a jury in an action to recover for personal injuries resulting from an automobile collision, held--(a) the verdict was not contrary to the evidence and the court was correct in overruling the motion for new trial on this ground; (b) the testimony of defendant that 'his foot slipped off the brake' was not negligence as a matter of law and the court was correct in submitting the question of negligence to the jury; (c)the court's instruction on 'unavoidable accident' was not erroneous as a matter of law; (d) since plaintiff made no objection to the instruction it became the law of the case.

2.Following a long line of decisions, the rule consistently followed in this court is that where there is substantial and competent evidence to support the jury's finding this court on appeal cannot weigh conflicting evidence or pass upon the credibility of witnesses.This is the function of the jury and this court cannot assume the position of the trier of the facts.

3.Where the complaining party makes no objection to an instruction it is the well settled rule of this jurisdiction that the instruction becomes the law of the case unless it is erroneous as a matter of law.

John W. Sowers, Wichita, argued the cause and Clarence R. Sowers, Wichita, was with him on the briefs for appellant.

Robert C. Foulston, Wichita, argued the cause and George B. Powers, Carl T. Smith, John F. Eberhardt, Samuel E. Bartlett, Stuart R. Carter, Malcolm Miller, Robert N. Patridge, Robert M. Siefkin, Richard C. Harris, and Gerald Sawatzky, Wichita, were with him on the briefs for appellee.

HALL, Justice.

This is appeal arises out of an action to recover for personal injuries resulting from an automobile collision.

This case was tried to a jury which returned a verdict for the defendant.The plaintiff thereafter filed his motion for a new trial which was overruled and this appeal is taken from the verdict of the jury and the judgment of the court overruling plaintiff's motion for new trial.The essential facts are not in dispute but the following summary is necessary in order to comprehend the issues of the appeal.

The accident occurred on December 23, 1952, at approximately 3:45 p. m. at the intersection of First Street and Emporia Avenue in Wichita.The plaintiff was proceeding east on First Street and had stopped his automobile at the intersection to obey a red signal light.The plaintiff's automobile was followed by an automobile driven by a Reverend Irving O. Conradson.The red light changed and Conradson was coming to a stop behind the plaintiff when the defendant's automobile ran into the rear end of the Reverend's automobile and pushed it into the rear end of plaintiff's automobile.Conradson was not injured in the collision.The damage to plaintiff's automobile was light.We repaired his own automobile and made no claim for property damage in the law suit.

At the conclusion of the evidence, the court instructed the jury and the jury answered the following special questions:

'1.Was the defendantWalter W. Wallis guilty of any act or acts of negligence which were the proximate cause of the collision in question.

'Answer: No.

'2.If you answer Question 1, 'yes', state what such act or acts of negligence were.

'Answer: (No answer.)

'3.Was the collision in question the result of an unavoidable accident?

'Answer: Yes.'

In accordance with the verdict of the jury, judgment was entered for the defendant.A motion for new trial was filed and overruled.

Plaintiff appeals and makes three specifications of error.

His principle contention is that the verdict of the jury was contract to the evidence and the court erred in overruling his motion for new trial on this ground.

To substantiate this contention, plaintiff really only brings one point to the attention of the court which is best summarized in the following testimony of the defendantWalter W. Wallis.

'Q.Speak a little louder, please.A.I made a stop at the stop light at Topeka on First Street, going east; then after the light changed I went on and at about the alley there, just before you strike the 'Y'--the old Y.M.C.A., is when this accident occurred.I put my foot on the brake and slipped off and this car in front of me, I bumped this preacher's car.

'Q.Do you know approximately how fast you were going at that time?A.In my opinion, I was going about 12 or 15 miles per hour.

'Q.Did you have your foot on the brake, sir?A.Yes, sir.

'Q.Youthink you had your foot on the brake immediately prior to the accident?A.Yes, sir.

'Q.And how did it slip off?A.Well, it just slipped.That's all.Putting pressure on, it slipped.I was probably out a little to the edge.Anyway, it slipped.'

On cross examination, the defendant further said:

'Q.Then when did you first see it (Stephenson's car)?A.When I was in the neighborhood of twenty feet behind it.That isn't when I first saw the car; that is when I applied my brake and my foot slipped.Yes, sir.

'Q.Does your foot usually slip off of your brake?A.Not very often.

'Q.About how many times does your foot slip off your brake a week or year?A.That has probably been the only time in thirty-five years of driving.'

Plaintiff contends that defendant's testimony that 'his foot slipped off the brake' established his negligence as the sole and proximate cause of plaintiff's damages as a matter of law.Plaintiff cites the following cases in support of his contention: Eldredge v. Sargent, 150 Kan. 824, 96 P.2d 870;Jones v. Atchison, T. & S. F. R. Co., 129 Kan. 314, 282 P. 593;Berry v. Weeks, 146 Kan. 969, 73 P.2d 1086;Leathers v. Dillon, 156 Kan. 132, 131 P.2d 668;Wright v. National Mutual Cas. Co., 155 Kan. 728, 129 P.2d 271;Kansas Transport Co. v. Browning, 10 Cir., 219 F.2d 890;andBottenberg Implement Co. v. Sheffield, 171 Kan. 67, 229 P.2d 1004.

These authorities do not fully substantiate plaintiff's claim.They are essentially decisive on other issues.

A foot slipping off a brake has been determined to be a jury question and not negligence as a matter of law.

In the case of Strauch v. Bieloh, 16 Cal.App.2d 278, 60 P.2d 582, 585, the court said:

'* * * Even though her foot did slip from the brake in trying to apply it in an emergency, that does not prove that she was negligent in that regard.It merely indicates that she saw the emergency and was trying to avoid it.'

While this court has never decided this specific point, it has held that the failure of brakes to hold at the time of an accident did not constitute negligence as a matter of law.In Calnon v. Cook, 178 Kan. 517, 289 P.2d 731, the court said:

'* * * Plaintiffs argue the failure of defendant's brakes to work at that particular time and place constituted negligence as a matter of law.There was substantial evidence that just a few minutes before the collision, with which we are dealing, defendant had driven down several grades and turned several corners and the brakes on the truck had worked.It was not until he was confronted with this herd of cattle in the road ahead of him and he attempted to use his brakes that he discovered they were not working.There was also evidence that master brakes, such as those with which this truck was equipped, go out suddenly and without warning.The evidence is not entirely clear as to the part defendant's emergency brakes played in the accident.However all the surrounding facts and circumstances upon which reasonable minds might differ as to defendant...