Turnbull v. Byram, 56142
| Decision Date | 13 July 1984 |
| Docket Number | No. 56142,56142 |
| Parties | Steven M. TURNBULL, Appellee, v. Gary E. BYRAM, Appellant, and The City of Hutchinson, Kansas, Cross-Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A general verdict resolves all controverted issues in favor of the prevailing party and imports a finding on all issues in a case which are not inconsistent with answers to special questions submitted.
2. Where the jury finds a party to an action negligent and the record on appeal discloses as a matter of law that party is not negligent, the negligence of the remaining parties to the action must be redetermined by the factfinder and the percentages of fault of the remaining parties reassigned on retrial.
3. The record on appeal is examined and it is held: The evidence is sufficient to support the jury's finding of negligence on the parts of the plaintiff and defendant Byram, and the defendant City of Hutchinson is not negligent as a matter of law.
J. Stanley Hill of Branine, Chalfant & Hill, Hutchinson, argued the cause, and William David Chalfant, Hutchinson, of the same firm, was with him on the brief for the appellant.
Larry A. Bolton and Dennis D. Webb of Gottschalk, Bolton & Webb, Hutchinson, argued the cause, and were on the brief for the appellee.
Philip H. Alexander, City Atty., argued the cause, and was on the brief for the cross-appellant.
This is a negligence action involving an intersection collision in Hutchinson, Kansas, in which Gary E. Byram and the City of Hutchinson (defendants-appellants) appeal a jury award of damages in favor of Steven M. Turnbull (plaintiff-appellee). Appellant Byram contends that under the facts presented he was not negligent as a matter of law in operating his vehicle. The City denies negligence, but contends, if the evidence establishes negligence on its part, it is immune from liability under provisions of the Kansas Tort Claims Act (KTCA), K.S.A.1983 Supp. 75-6101 et seq.
On the morning of November 4, 1981, at approximately 6:55 a.m., a truck driven by Gary Byram collided with one driven by Steven Turnbull at the intersection of Eleventh Street and Highway K-61 in Hutchinson. The overhead traffic control signals, which normally governed traffic traveling through the intersection, were not working because of an incident earlier that morning when an automobile struck and disabled the traffic control box. As a temporary measure the city street department had placed a portable four-way stop sign, equipped with yellow flashing lights, in the middle of the intersection. However, due to heavy fog conditions, visibility was very poor, and the collision involved here resulted.
K-61 and Eleventh Street both have four lanes of traffic at the point where they intersect. K-61 also has two left turn lanes. The overhead traffic control signals had become operational at this intersection only a week before the accident occurred. Prior to that time traffic at the intersection was governed by stop signs requiring east and west bound traffic on Eleventh to stop and yield the right-of-way to through traffic on K-61. Approximately 60 to 70 feet west of this intersection is the adjacent intersection of Lorraine and Eleventh Streets. Lorraine runs parallel with K-61 to the north of Eleventh Street but does not continue south of Eleventh beyond the intersection. The traffic signals for both intersections were controlled by the control box which had been damaged that morning.
At about 5:30 the morning of the collision a police officer discovered the traffic signals for the two intersections were not operating and summoned a traffic signal technician to the scene. The technician, Frank Gulotta, arrived at approximately 5:50 a.m. and requested that a four-way stop sign and two single stop signs be brought to the intersection. They arrived at 6:20 a.m. Due to the fog, yellow flashing lights were attached to the four-way stop sign which was placed in the center of the K-61 and Eleventh Street intersection. The other two stop signs were used to control traffic at the Lorraine intersection. One was placed on the south side of Eleventh Street to control eastbound traffic entering the intersection, and the other was placed on the west side of Lorraine to control southbound traffic entering the intersection. All three signs were in place by 6:30 a.m. A city employee helping place the signs testified the four-way stop sign could be seen from a distance of 50 feet to the west of the intersection. Mr. Gulotta stayed at the intersection until 6:45 a.m. watching the response of the traffic to ensure the stop signs were adequately controlling the situation. He saw about a dozen cars pass through the intersection during this time and each properly stopped for the stop signs, regardless of the direction from which it approached.
The plaintiff left his home about 6:20 the morning of the collision to go to a nurse's aid training class scheduled to begin at 6:45 a.m. at the Hutchinson hospital. His route to the hospital required him to travel north on K-61 through the intersection at Eleventh Street. About a quarter mile south of the intersection he could see the traffic signals were not working. He did not see any other type of traffic control devices placed at the intersection, so assumed the prior traffic control system (i.e., that Eleventh Street traffic was required to stop for through traffic on K-61) governed the traffic traveling through the intersection. Without stopping, he passed through the intersection between 6:30 and 6:40 at a speed of 20 m.p.h., watching for east- and westbound traffic. Upon arriving at the hospital he realized he had forgotten his lab coat, so returned home, passing through the intersection again in the same manner. After retrieving his lab coat, it was again necessary for him to pass through the intersection on his second trip to the hospital. He testified he could only see for a distance of ten feet. As he approached the intersection he again looked to his left and right for east and west bound traffic. Seeing none, he proceeded through the intersection without stopping, traveling at a speed of approximately 20 m.p.h. He did not see the defendant's truck until it was approximately ten feet away from his vehicle, approaching from his left, or the west. The two trucks collided. He testified he thought the defendant was traveling as fast or faster than he was. He also testified he did not see the four-way stop sign on any of his three trips through the intersection due to the density of the fog. He further testified that on his first two trips through the intersection he did not see any cars traveling on K-61 stop at the intersection, but instead saw several cars pass through the intersection without stopping as he had. He did, however, see one car traveling on Eleventh Street stopped at the intersection.
Gary Byram testified he was eastbound on Eleventh Street approaching the Lorraine Street intersection when he realized the newly installed traffic lights were not functioning. Several yards west of the intersection he saw the stop sign at the Lorraine Street intersection and the flashers on the four-way stop sign in the middle of the K-61 intersection. He stopped first at Lorraine Street and then proceeded to the second intersection where he clearly saw the four-way stop sign. Once there he allowed two southbound cars stopped on K-61 to proceed across the intersection, and not seeing any other approaching vehicles, he then started into the intersection. He did not see the plaintiff's truck until just prior to the collision. He was traveling 10 to 15 m.p.h. at the time of the impact. He testified he saw three vehicles travel through the intersection prior to when he did, none of which failed to stop at the four-way stop sign.
A police officer who arrived at the scene shortly after the accident occurred testified that due to the fog, visibility was "zero." He could not tell the flashing object in the middle of the intersection was a stop sign until he was entering the intersection. He determined Byram's vehicle struck Turnbull's vehicle in its side. He talked with Byram at the scene and prepared a report later that day indicating Byram had stated he had not seen the stop sign and had failed to stop. However, about a week later he talked with Byram and determined he had misunderstood what Byram had said and revised his report, omitting Byram's statement about failing to stop. Byram testified he had told the officer he thought the other driver had run the stop sign, and when he discovered the officer had not accurately reported what he had said, he asked the officer to change it. A witness who had driven through the intersection that morning testified that due to the density of the fog the four-way stop sign was not visible until he had entered into the intersection. Another witness who had driven through the intersection before the four-way stop sign was in place testified visibility was so poor she could see nothing.
In defining the issues prior to trial the parties charged each other with negligence in several respects. The plaintiff alleged Byram was negligent in the operation of his motor vehicle. At trial he testified he felt Byram was negligent because (1) he thought Byram was going as fast or faster than he was when the collision occurred; (2) Byram knew there was a stop sign controlling traffic, whereas he didn't; (3) the plaintiff had the...
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