Vannaman v. Caldwell, 45959

• Decision Date: 12 June 1971
• Docket Number: No. 45959,45959
• Parties: Gene VANNAMAN and Groendyke Transport, Inc., Appellants, v. Duane E. CALDWELL and Verne I. Redford, Appellees.
• Court: Kansas Supreme Court

Page 1373

485 P.2d 1373

207 Kan. 467

Gene VANNAMAN and Groendyke Transport, Inc., Appellants, v. Duane E. CALDWELL and Verne I. Redford, Appellees.

No. 45959.

Supreme Court of Kansas.

June 12, 1971.

Syllabus by the Court

1. On appellate review the verdict of a jury will not be disturbed if based on any competent substantial evidence.

2. A negative finding against one who has the burden of proof implies that he did not sustain that burden.

3. The record in a motor vehicle accident case examined and it is held: That there was substantial competent evidence from which the jury might have found that none of the parties was liable for the damages suffered by any of the other parties.

Otto J. Koerner, Wichita, argued the cause, and G. E. Carnahan, Wichita, was with him on the brief for the appellants.

Stanley G. Andeel, of Foulston, Siefkin, Powers & Eberhardt, Wichita, argued the cause, and Robert C. Foulston, Wichita, was with him on the brief for the appellee, Verne I. Redford.

FOTH, Commissioner:

This action arises out of two consecutive motor vehicle accidents which occurred about 7:45 a. m. on August 17, 1967, on a county road known as Hunter Boulevard, approximately 6.7 miles north of Nickerson, Kansas.

There were three vehicles involved. The first was a semi-trailer gasoline transport truck owned by plaintiff-appellant Gene Vannaman, leased from him and operated by plaintiff-appellant Groendyke Transport, Inc., and driven by Groendyke's employee Bernard W. Hinck, who is not a party to the action. The second was a 1966 Chevrolet driven by defendant-appellee Verne I. Redford, and the third a 1957 Ford driven by defendant-appellee Duane E. Caldwell. Because of the multitudinous claims asserted by each in the trial court, the above persons will be referred to in this opinion by name.

Hunter Boulevard is a two lane road running north and south, with an overall width of 24 feet. The focal point of the incidents here is a bridge known as Cow Creek Bridge, which has abutments and railings some 152 feet in length. It rises in the center some 6.4 feet above the points 700 feet to the north and 700 feet to the south of the center of the bridge. Some 594 feet north of the north end of the bridge is the south end of the abutment to a smaller bridge, referred to as a 'culvert.'

The truck driven by Hinck and the Redford car were proceeding south. Before reaching the culvert Redford had pulled out to pass the truck and proceeded to do so, pulling abreast of the truck at about the culvert, driving about 65 miles per hour. There is a conflict in the testimony as to when Redford returned completely to the southbound lane. Redford testified that it was about 150 to 250 feet north of the north end of the bridge; Redford's daughter who was a passenger in his car testified they were in the southbound lane all the time their car was on the bridge; Hinck testified that Redford's left wheels were still slightly over the center line when Redford reached the center of the bridge, although in a signed statement given the day of the accident he had stated that Redford had returned to the southbound lane before entering the bridge.

At this point Caldwell enters the scene heading north at about 70 miles per hour. He testified that as he approached the bridge he saw the Redford car in the northbound lane at the north end of the bridge, and believing Redford could not return to the southbound lane in time to avoid a collision, at the speed the two cars were going, he applied his brakes. This caused his car to swerve to the left out of control.

The result was a collision, left front to left front, between the Redford and Caldwell cars. The point of impact was 9 feet south of the south end of the bridge, 8 feet from the west edge and 16 feet from the east side of the road-in other words, 4 feet into Redford's lane.

After the impact the Redford car proceeded some 141 feet south, ending up in the ditch on the west side of the road. Caldwell's car was pushed back about 12 feet from the point of impact and was left immobilized headed across the road, blocking both lanes, in the face of the oncoming truck.

Hinck, in the meantime, was following Redfore south at about 55 miles per hour. He testified that he saw no reason to anticipate an accident, and in fact was unaware of the presence of the Caldwell car until he saw it dip and pull to the left into the southbound lane. Until then his attention had been concentrated on the Redford car. At that point Redford was back in his lane. Hinck, seeing no place to go, slammed on his brakes, leaving 189 feet of intermittent skid marks until the impact of his truck with the Caldwell car 21 feet south of the south end of the bridge. Both the truck and the Caldwell car came to rest on the east side of the road, partially in the ditch.

Thereafter this suit was commenced by Vannaman and Groendyke against Redford and Caldwell for damages to the plaintiffs' respective interests in the truck. Subsequent pleadings, insofar as pertinent, were that Caldwell filed a counter claim against each plaintiff and a cross claim against Redford for personal injuries, and Redford filed a cross claim against Caldwell for damages to his car.

In its pre-trial order the court below recited the contentions of the respective parties. Highly summarized, they are that each denied any negligence on his own part, each alleged specific acts of negligence and/or contributory negligence on the part of each adverse party, and that each claimed the driver of his respective vehicle was confronted with a sudden emergency. Later stipulations were made as to the amount of damages suffered by each party except for Caldwell's claim for personal injury.

At this stage the matter was tried to a jury. At the conclusion of the trial eight questions were posed to the jury which were denominated a 'Special Verdict.' The questions and the jury's answers were as follows:

'1. Do you find that plaintiff Vannaman should have judgment against defendant Caldwell for Vannaman's damages? No.

'2. Do you find that plaintiff Groendyke Transport, Inc., should have judgment against defendant Caldwell for the trucking company's damages? No.

'3. Do you find that plaintiff Vannaman should have judgment against defendant Redford for Vannaman's damages? No.

'4. Do you find that plaintiff Groendyke Transport, Inc., should have judgment against defendant Redford for the trucking company's damages? No.

'5. If your answer to 2 is no then do you find that defendant Caldwell should have judgment against plaintiff Groendyke Transport for Caldwell's damages? No.

'6. Do you find that defendant Caldwell should have judgment against defendant Redford for Caldwell's damages? No.

'7. If your answer to 6 is no do you find that defendant Redford should have judgment against defendant Caldwell for Redford's damages? No.

'8. If you find that defendant Caldwell should have judgment against any party what do you find his...