Welch v. Young

• Decision Date: 20 January 1979
• Docket Number: No. 49017,49017
• Citation: 589 P.2d 567,225 Kan. 189
• Parties: Adam R. WELCH, As Administrator de bonis non of the Estate of Luther J. Welch and Administrator of the Estate of Eliza L. Welch, Appellant, v. Sharon K. YOUNG, Appellee.
• Court: Kansas Supreme Court

Page 567

589 P.2d 567

225 Kan. 189

Adam R. WELCH, As Administrator de bonis non of the Estate of Luther J. Welch and Administrator of the Estate of Eliza L. Welch, Appellant, v. Sharon K. YOUNG, Appellee.

No. 49017.

Supreme Court of Kansas.

Jan. 20, 1979.

Syllabus by the Court

1. The rules governing the propriety of summary judgments (K.S.A. 60-256) are stated and applied.

2. Summary judgment should not be entered if there remain genuine issues of material fact.

3. In an action growing out of an automobile collision, the record is examined and it is held the trial court was in error in granting summary judgment to defendant when there were unresolved genuine issues of material fact.

James S. Phillips, Sr., of Phillips & Phillips, Chartered, Wichita, argued the cause and was on the brief for appellant.

Richard L. Honeyman, of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, argued the cause and John B. Rathmel, Wichita, was with him on the brief for appellee.

HOLMES, Justice:

This is an appeal in an automobile personal injury action from an order of the district court sustaining the defendant's motion for summary judgment.

On August 24, 1975, automobiles driven by Sharon K. Young, defendant, and Luther J. Welch, now deceased, collided in the intersection of Central Avenue and 159th Street East in Butler County. Mrs. Young was proceeding east on Central, a blacktop highway, and Mr. Welch was proceeding north on 159th Street, a gravel country road. Central Avenue is a protected thoroughfare with stop signs controlling the north-south traffic on 159th Street. As Mrs. Young approached the intersection, driving within the 55 mile per hour speed limit, the Welch automobile pulled onto Central Avenue in an attempt to make a left turn and proceed west on Central. Mrs. Young testified, in a discovery deposition, that she honked her horn, hit the brakes and swerved to the left in an attempt to avoid a collision. Her attempts were unsuccessful and her vehicle hit the Welch vehicle in the left side. Both parties were injured. Mrs. Young, who was nine months pregnant, lost her unborn baby and eventually settled with the liability insurance carrier of Mr. Welch. Welch was hospitalized and on October 4, 1975, died from injuries received in the collision.

Prior to his death Welch filed this action against Mrs. Young. After his death, his widow, Eliza L. Welch, as administrator of his estate, was substituted as plaintiff. Eliza L. Welch subsequently died and her son, Adam R. Welch, as administrator de bonis non of his father's estate and as administrator of his mother's estate, was substituted as plaintiff.

On December 3, 1976, summary judgment was granted in favor of defendant. The trial court in its findings found there were no genuine material issues of fact and that as a matter of law (1) the decedent, Luther J. Welch, was negligent and that said negligence was not less than the causal negligence of the defendant, and (2) there was no competent evidence the defendant was negligent.

While appellant specifies several points on appeal, the issues are two-fold. Were there any material issues of fact and, as a matter of law, was the negligence of the deceased equal to or more than that of the defendant?

Pretrial discovery disclosed that Mrs. Eliza J. Welch talked with her husband the day of the accident in the emergency room at Wesley Hospital in Wichita. Mrs. Welch testified she asked her husband what happened and he stated he was making a left turn when he saw the Young vehicle was going to hit him and that defendant ran into his vehicle. Plaintiff obtained the services of Lt. Charles R. Oswald of the Wichita Police Department as an expert to reconstruct the events of the accident and to testify as to certain conclusions based upon his investigation. Oswald testified in response to certain hypothetical questions that in his opinion Mrs. Young could have stopped her vehicle in time to avoid the collision if driving 45 to 50 mph as she testified. Oswald further testified that in his opinion Mrs. Young might have avoided the collision by swerving to the right and going behind the Welch vehicle. When questioned about the possibility that Welch had failed to yield the right-of-way he indicated that in his opinion Welch may have done so but on the other hand the Young vehicle might not have constituted an immediate hazard at the time Welch approached the intersection. Michael C. Hayes, a Butler County deputy sheriff, investigated the accident at the scene and was of the opinion that Mr. Welch failed to yield the right-of-way.

In the original petition, several acts of negligence were charged against Mrs. Young including inattentive and careless driving, failure to keep a proper lookout, failure to slow down, failure to turn aside to avoid the collision and failure to have her vehicle under proper control.

Defendant contends there are no genuine issues as to any material fact, that much of plaintiff's pretrial discovery would be inadmissible at trial and that it would be futile to force defendant to try the case. Mechtley v. Price, 217 Kan. 344, 536 P.2d 1385 (1975).

In support of defendant's position she asserts that there is no evidence of excessive speed on her part and that she had the right to assume that the Welch vehicle or any vehicle on 159th Street would stop and yield the right-of-way to the through traffic on Central. Harbaugh v. Darr, 200 Kan. 610, 438 P.2d 74 (1968); Gardner v. Pereboom, 197 Kan. 188, 416 P.2d 67 (1966); Keir v. Trager, 134 Kan. 505, 7 P.2d 49, 81 A.L.R. 181 (1932).

As stated in Harbaugh v. Darr at page 615, 438 P.2d at page 78:

"Where the defendant knew she was driving on a protected highway, she...