Wegley v. Funk

• Decision Date: 13 July 1968
• Docket Number: No. 45128,45128
• Parties: Letitia WEGLEY, Appellant, v. Irene FUNK, Appellee.
• Court: Kansas Supreme Court

Page 323

443 P.2d 323

201 Kan. 719

Letitia WEGLEY, Appellant, v. Irene FUNK, Appellee.

No. 45128.

Supreme Court of Kansas.

July 13, 1968.

Syllabus by the Court

The record in an action to recover damages for personal injuries alleged to have been sustained when the plaintiff was struck by the defendant's automobile as she was crossing an unmarked public roadway after walking away from the entrance to an overhead pedestrian crossing which afforded access over the roadway, is examined and it is held that under the facts and circumstances the district court did not err in instructing the jury as to the rights and duties of pedestrians and drivers of motor vehicles under applicable sections of the Act Regulating Traffic on Highways (K.S.A. Ch. 8, Art. 5), and in refusing to give instructions requested by the plaintiff, or in admitting the testimony of an expert witness as to the speed of the defendant's automobile at the time of the accident.

Albert L. Kamas, Witchita, argued the cause, and Richard A. Render and Ronald L. Nieto, Wichita, were with him on the brief for appellant.

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

FATZER, Justice:

This was an action to recover damages for personal injuries sustained as a result of a pedestrian being struck by a motor vehicle while attempting to cross McArthur Road. The case was tried to a jury which returned a verdict in favor of the defendant.

The pleadings are not complicated and no question is raised by either party with respect to their sufficiency. It is unnecessary to detail them, and it may be said that the plaintiff's petition charged negligence on the part of the defendant, which was the proximate cause of her injuries, while the defendant's answer alleged that the accident and the injuries were not due to negligence on her part, but were caused by and resulted from the plaintiff's negligence.

At the close of the plaintiff's evidence, the district court overruled the defendant's motion for a directed verdict, which was renewed at the close of all the evidence and again overruled. The jury was instructed, and the case submitted on issues of negligence, if any, of defendant and contributory negligence, if any, on the part of plaintiff. The jury returned a general verdict in defendant's favor and judgment was entered thereon. The plaintiff's motion for a new trial was filed and overruled. The plaintiff has appealed from the verdict and judgment and makes three contentions of error. The defendant has cross-appealed from the district court's orders overruling her motions for directed verdict, and designates two points of error.

The evidence shows the accident occurred on McArthur Road, an east-west street adjacent to the Boeing Airplane Plant at Wichita, on November 10, 1964, at 5:40 a. m. The plaintiff, who worked at Boeing, got out of Mr. Thompson's automobile in which she was riding at the bus ramp on the south side of McArthur across from Gate 5, where buses and automobiles unload employees of the Boeing Plant. Gate 5 is the entrance to a supervisors' parking lot immediately adjacent to the main plant or building where the plaintiff worked. McArthur Road is a four-lane trafficway, 47 feet wide, with two lanes going in an easterly direction and two lanes going in a westerly direction, and has no median strip. On the date of the accident, the weather was normal; the morning was cold and it was dark. The Boeing floodlights and the street lights were not on. The plaintiff was dressed in dark clothing with a black sweater; she wore black shoes, and carried a black purse. She knew there was an overhead pedestrian crossing open and available to her, which crossed over McArthur Road 118 feet west of where she got out of Thompson's automobile. The area around the entrance to the overhead crossing was marked with various signs, one of which stated 'FOR SAFETY SAKE USE THE OVERPASS.' Approximately 2/3 to 3/4 of a block west of the pedestrian overhead crosswalk was a pedestrian controlled light and marked crosswalk which pedestrians could use in crossing McArthur Road.

Instead of using the pedestrian overhead crosswalk, the plaintiff commenced to walk north across McArthur Road at a place not marked for crossing. She testified she looked both ways and saw no traffic coming from the west and none coming from the east. She looked to thr right, or east, again, and saw a car turning the corner off of Oliver Street onto McArthur. She did not know where she was on the street at that time, and that was the last she remembered. She did not know where the accident occurred; whether it occurred on the north side of McArthur or on the south side, or whether it happened on the street or off the street.

The defendant was returning home from taking her husband to work at Boeing's. She stopped at the stoplight at Oliver Street an McArthur Road, turned right on the green light, and drove west on McArthur in the outside or north lane for westbound traffic. Her headlights were on dim and she saw no pedestrians in the roadway until the plaintiff suddenly appeared in front of her automobile at a very close range, which she estimated was fifteen feet. She applied her brakes but could not avoid striking the plaintiff. In an attempt to avoid the accident, she laid down a maximum of 28 feet of skid marks. The impact placed a small dent in the right front fender of her automobile. The defendant stated she thought she was traveling at a speed somewhere between 25 and 30 miles per hour. She had traveled the roadway on numerous occasions in the past and had never seen pedestrians crossing McArthur where the accident occurred.

Walter Bell was called by the plaintiff and testified he witnessed the accident from his automobile which was traveling east on McArthur Road. He testified that just as he was passing under the overhead crosswalk he saw a silhouette of a person as it passed in front of the left headlight of the defendant's automobile; that the pedestrian was 'walking normally'; that he was hopeful the plaintiff would clear the defendant's car; that he saw the headlights of defendant's car dip when she applied her brakes and saw the car strike the plaintiff, and that he stopped his car to lend what assistance he could. He further testified there was no reason why a pedestrian on the roadway such as the plaintiff did not or could not have seen his headlights or the headlights of the defendant's approaching vehicle.

The plaintiff first contends the district court's Instruction No. 10 improperly and prejudicially stated the law and that it was ambiguous as to the rights and duties under the existing facts and circumstances. She relies upon Barker v. Seber, 154 Kan. 24, 114 P.2d 791. The instuction reads:

'The laws of Kansas provide that any pedestrian crossing a roadway at a point other than within a marked crosswalk, or within an unmarked crosswalk at an intersection, shall yield the right of way to all vehicles upon the roadway.

'The laws of Kansas also provide that any pedestrian crossing a roadway at a point where an overhead pedestrian crossing has been provided shall yield the right of way to all vehicles upon the roadway.

'The laws of Kansas also provide that even if a driver of a vehicle has the right of way, he shall exercise due care to avoid colliding with any pedestrian upon any roadway, and shall give warning by sounding a horn when necessary * * *

'The laws of Kansas also provide that no pedestrian shall suddenly leave a curb, or other safe place an walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield.

'It is a general rule of law in this state that pedestrians and drivers of motor vehicles have equal rights upon a highway, but that each must use as reasonable care as circumstances require and exercise his right with due regard to the rights of others using the highway. Whether or not a pedestrian who attempts to cross a roadway between intersections at a point other than within a marked crosswalk where no traffic control signals are in operation is negligent, in failing to yield the right of way to an oncoming vehicle, is a question to be determined by the jury under all of the facts and circumstances appearing in the individual case.'

Instruction No. 10-A, about which no complaint is made, reads:

'You are instructed that the term 'right of way' is defined by our law as 'the privilege of the immediate use of the highway."

The plaintiff argues that although the law requires her to yield the right of way as stated in the instruction, the instruction should also point out that once the right of way has been yielded and a pedestrian thereafter begins to cross a street, the pedestrian has the right of way and all approaching vehicles should yield to the pedestrian. This position was taken by the plaintiff at the trial in her Requested Instructions 1, 2 and 3, which were refused by the district court. Those requested instructions read:

'REQUESTED INSTRUCTION No. 1

'You are instructed that once a pedestrian has committed herself to the crossing of any highway or street, whether or not it be in a cross walk, and such commitment was properly made, thereafter, she has the right to continue to cross such street or highway and any and all oncoming motorists have a duty to yield the right of way to that person so crossing.'

'REQUESTED INSTRUCTION No. 2

'The laws of Kansas provide that every pedestrian crossing a roadway at a point other than within a marked cross walk or within an unmarked cross walk at an intersection shall...