Townsend v. Jones, 41008

• Decision Date: 08 November 1958
• Docket Number: No. 41008,41008
• Citation: 331 P.2d 890,183 Kan. 543
• Parties: Lloyd C. TOWNSEND, Administrator of the Estate of Howard G. Townsend, Deceased, Appellant, v. Paul Laverne JONES, Appellee.
• Court: Kansas Supreme Court

Page 890

331 P.2d 890

183 Kan. 543

Lloyd C. TOWNSEND, Administrator of the Estate of Howard G Townsend, Deceased, Appellant, v. Paul Laverne JONES, Appellee.

No. 41008.

Supreme Court of Kansas.

Nov. 8, 1958.

Syllabus by the Court

1. Where a pedestrian crossing a highway within the city limits was killed by an automobile driven at an excessive speed, the record in a wrongful death action is examined, and it is held, there was sufficient evidence of the pedestrian's negligence, if believed by a jury, to rebut the presumption that the pedestrian exercised due care for his own safety and to warrant the finding by the jury that the pedestrian was guilty of contributory negligence which barred recovery.

2. In the absence of other evidence tending to show contributory negligence, evidence derived solely from a blood test indicating intoxication is insufficient to present a jury question of contributory negligence. Where, however, there is other evidence tending to show contributory negligence, and the only basis for an objection to the admissibility of such evidence is that other evidence tending to show contributory negligence is lacking, it becomes the law of the case that evidence derived from a blood test indicating intoxication is admissible on the question of contributory negligence.

3. Evidence of inward intoxication standing alone does not constitute contributory negligence per se, but is a matter to be taken into consideration as bearing on the question whether a pedestrian has, by his own conduct, brought the injury upon himself, where there is other evidence tending to show contributory negligence, since the law exacts from one who is voluntarily intoxicated the same degree of care and caution in avoiding an exposure of his person to danger as it exacts from a sober person of ordinary prudence under like circumstances.

4. Instructions given to the jury by the trial court as set forth in the opinion fairly instructed the jury as to the law of the case, and the trial court did not err in denying requested instructions.

5. In this jurisdiction there is a presumption that a deceased person involved in an automobile accident exercised due care for his own safety. Such presumption, however, is rebuttable and may be overcome by direct or circumstantial evidence.

6. The contributory negligence of a pedestrian, in a case such as that described in Syllabus No. 1, is ordinarily a factual question to be determined from all the evidence by the triers of the fact.

7. The findings of fact and the general verdict of a jury based upon conflicting evidence, when approved by the trial court, will not be disturbed on appellate review.

Ernest J. Rice and Robert M. Cowger, Topeka, argued the cause, and James Sullivan, Wamego, and Wallace M. Buck, Jr., Topeka, were with them on the briefs for appellant.

Michael A. Barbara, Topeka, argued the cause, and Marion Beatty and Robert W. Domme, Topeka, were with him on the briefs for appellee.

SCHROEDER, Justice.

This is an action filed under the wrongful death statute by the administrator (appellant) for the death of Howard G. Townsend. The action was based upon the negligence of the defendant in driving his automobile in excess of the lawful speed limit and in failing to yield the right of way to the decedent who was walking across a highway. Contributory negligence was the basis of the defense. The case was tried to a jury and resulted in a verdict and judgment for the defendant. Appeal was duly perfected from the judgment and all other adverse rulings.

The underlying question presented is whether there was sufficient evidence to support a finding by the jury that the decedent was guilty of contributory negligence.

Disposition of the trial errors specified control the decision herein.

In answer to special questions the jury found that the decedent failed to exercise due care in crossing the highway due to the fact that the headlights of the defendant's approaching automobile were completely visible to the decedent. The jury also found in answer to special questions that the defendant was guilty of negligence which was the proximate cause of decedent's death in failing to exercise the due care that an ordinary prudent person would use while driving a vehicle on the highway and by exceeding the posted speed limits.

Howard G. Townsend, the decedent, 54 years of age and in good health, was a resident of Louisville, Kansas, and on December 9, 1955, between the hours of 4:00 and 5:00 p. m., consumed approximately four ounces of whiskey with a friend named Stratton. At approximately 6:00 p. m., the decedent entered a beer tavern located on the opposite side of Highway K-99 in Louisville. The highway runs north and south through the city. While in the tavern the decedent, according to the evidence, drank one bottle of beer and purchased a 6-pack carton of beer. At approximately 6:30 p. m., he left the tavern to return to his home across the highway. Near the tavern Plum Street intersects the highway but it has no marked cross-walk. This particular December night was dark, cloudy and cold. At the time of the accident the decedent was dressed in a Navy blue P-coat, dark coveralls and a dark cap. A street light was located back a ways from the intersection but gave no benefit to the vicinity of the intersection itself.

At the particular time and place in question the defendant was driving his vehicle on Highway K-99 heading north approaching the intersection at a speed of 30 to 35 miles per hour. The posted speed zone was 30 miles per hour. The lights on the defendant's automobile were on and the vehicle was in good operating order. As the defendant approached this intersection, he suddenly saw a black figure (the decedent) about 10 to 15 feet in front of his automobile in the center of his lane of traffic crossing the highway in an easterly direction. The decedent had his head down, looking to the north away from the defendant's vehicle, his collar turned up and his cap pulled down low. The defendant swerved to the left to avoid striking the decedent, but struck him with the right front fender of his vehicle. The exact point of impact could not be definitely established since the decedent was lying approximately 6 to 8 feet from the intersection after the accident and when the highway patrolman arrived to investigate the scene, the decedent and the vehicle had been removed.

Within a short while after the decedent was removed from the scene of the accident to the hospital he died. The county coroner subsequent thereto collected a sample of blood from the body of the decedent at the mortuary and forwarded it to the Lattimore-Fink Laboratory in Topeka, Kansas, to determine blood alcohol content. The result of the test showed that the decedent had .238 alcohol content in his blood, and it was stipulated that the testimony of an expert would disclose that a person with blood alcohol content findings of .15 or more is under the influence of alcohol.

We shall consider only the questions presented by the appellant in his brief.

Did the trial court err in allowing the introduction of evidence relating to a blood test, the sample of which was taken from the body of Howard G. Townsend shortly after his death?

The test referred to is commonly known as the blood-alcohol test and the evidence with respect thereto has been indicated in the statement of facts. We are limited on review of this question to the specific objection made by the appellant in the trial of the case. The record as abstracted and presented to this court discloses the following objection by the appellant, plaintiff below:

'Mr. Rice: * * * I am going to object to any testimony concerning these blood tests, its taking and the figures arrived at as a result of it. I do so for two reasons. First, is this, that the blood test standing alone is inadmissible as to any issues in this case. Particularly I know, and the Court knows relating to contributory negligence and that is the point they are seeking to establish by the blood test the reason being that there is no other competent evidence that has been introduced as yet relative to contributory negligence other than the blood test * * *.' (Emphasis added.)

The second reason stated was that 'There is a break in the chain of the taking of the blood.' Argument on this point beyond the objection itself is not reported in the record, and after further testimony of the county coroner was taken, which indicated that he collected a sample of blood from the body of Howard G. Townsend and transmitted the same to the Lattimore-Fink Laboratory, the court admitted the evidence. Since nothing further appears in the record concerning this second reason for the objection, we must assume either that the reason given was found to be unsound after proper foundation evidence was presented, or that appellant waived his objection on this particular point.

The question, therefore, concerning the admissibility of the blood test in evidence is strictly limited to the only question presented by the record in this case--whether other competent evidence tending to show contributory negligence had been introduced to establish a foundation for the admission of evidence derived from a blood test indicating intoxication on the question of decedent's contributory negligence.

At the precise time appellant, plaintiff below, objected the defendant below had not presented all of his evidence, but it was disclosed in the presentation of the plaintiff's case that the decedent had consumed both whiskey and beer commencing approximately two ane one-half hours prior to the accident; that the decedent was completely dressed in dark clothes with a dark cap, coat collar turned up, cap pulled down, crossing the highway at or near an intersection on a dark cloudy, cold December night. The highway patrolman testifying for the plaintiff on cross examination by the defendant disclosed that the accident...