Wilkins v. Hogan
| Decision Date | 18 May 1970 |
| Docket Number | No. 231-69.,231-69. |
| Parties | Bernice WILKINS, Individually, and on Behalf of Paula Sue Hoover and Stanley Neil Wilkins, a Minor, Sole Heirs at Law of Paul H. Wilkins, Deceased, Appellees, v. Ernest P. HOGAN, Jr., and Tri-State Insurance Company, Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
William Hergenreter, Topeka, Kan. (Shaw, Hergenreter & Quarnstrom, Topeka, Kan., on the brief), for appellees.
Arthur E. Palmer, Topeka, Kan. (Goodell, Casey, Briman, Rice & Cogswell, Topeka, Kan., on the brief), for appellants.
Before LEWIS and SETH, Circuit Judges, and BRATTON, District Judge.
This wrongful death action was originally filed in the Kansas state court by Bernice Wilkins for herself and her children as the heirs of Paul H. Wilkins. It was thereafter removed to the federal court by the defendants-appellants Ernest P. Hogan, Jr., and Tri-State Insurance Company. The case was subsequently tried to a jury, and a verdict of $26,674.92 was returned in favor of the plaintiffs.
The action arose out of an automobile collision that occurred on January 27, 1967 between a Chevrolet automobile driven by the decedent Wilkins and a Plymouth automobile driven by Hogan within the scope of his employment by Tri-State Insurance.
It had snowed the night before the accident so that on January 27 the highway was snow-packed and icy. Even though the road had been graded, ice and snow remained in sufficient quantities to obliterate the median line between the northbound and southbound lanes of traffic. The east and west shoulders of the road were similarly indistinguishable.
Prior to the accident the Wilkins' vehicle was proceeding north in the east lane of the highway, and the Hogan car was proceeding south in the west lane of traffic.
There were no eye witnesses to the actual collision between the vehicles other than Hogan.
A state trooper who arrived at the scene shortly after the accident did not at that time conduct a full investigation, although he did take photographs of the scene and the two automobiles. He continued his investigation on the following day when, with the help of the sheriff, he took measurements.
The following morning he again visited the accident scene, where he observed three gouge marks on the east side of the pavement, together with debris from the accident.
He prepared a sketch of the scene which reflected that Hogan's car had traveled on for approximately 60 feet from the area where was found the debris, while the Wilkins' vehicle had proceeded in a northeasterly direction for only a very short distance.
He also visited Hogan in the hospital shortly after the accident. In response to the trooper's questions to him about whether the Wilkins' vehicle had been skidding or out of control as it approached his car before the collision, he answered in the negative. Further questioning about whether his own car was in any way out of control also elicited a negative response.
An auto damage appraiser who happened upon the scene shortly after the accident and who saw both cars at the scene subsequently examined the underside of the Wilkins' car, took measurements of the heavy scar marks found there, and then visited the accident scene, where he took measurements of the gouge marks. His comparison of the two sets of measurements reflected that the distances between the scar marks on the underside of the Chevrolet corresponded to the distances between the gouge marks in the northbound lane of traffic.
A physicist from the University of Kansas also examined the cars, the gouge marks and photographs of the scene, as well as the state trooper's report of the accident.
All three of these men testified for the plaintiff at trial as to the facts described above. In addition, the scientist testified as to his opinion of the angle of collision, stating that he thought the left front corner of the Chevrolet and the center of the front of the Plymouth had come together at the point of impact.
He further testified that, based upon his knowledge, experience and the physical evidence, he believed that the Plymouth was traveling faster than was the Chevrolet.
It was also his opinion that gouge marks were very apt to be found at the point of impact and that debris was indicative of the point of impact.
Finally he stated that based upon the physical evidence he believed there were only two ways in which the accident could have happened. If the Chevrolet had been proceeding north in its own lane, at least one-half of the left front of the Plymouth would have had to cross over into the lane to come together at the angle of collision he believed had occurred. If, on the other hand, the Plymouth had been proceeding south in its own lane of traffic right against the center line, nearly all of the Chevrolet would have had to have been in the southbound lane, with the rear of the Chevrolet very close to the west edge of the pavement. His sketch delineating the above testimony was admitted into evidence.
The defense called a Wichita, Kansas, policeman as its expert witness. Based upon the photographs and his examination of the cars, he stated that he thought the accident had occurred in Hogan's lane of traffic and that the Wilkins' car had been traveling faster.
Also called by the defense was a truck driver who, while he did not see the actual impact, did come upon the scene immediately thereafter and observed the cars spinning. Although he could not see the center line, he believed that the accident had taken place near the center of the highway on the west side of the road.
Mr. Hogan testified that he was in a state of shock when he talked to the trooper, so that what he may have said at that time regarding the Wilkins' car would have been incorrect. He further testified that the Wilkins' car either skidded or fishtailed into his automobile as he was proceeding south in his own lane.
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...not err in its malicious prosecution ruling. Even considering the evidence in the light most favorable to plaintiff, Wilkins v. Hogan, 425 F.2d 1022, 1024 (10th Cir.), Mendoza failed to show a termination indicating her innocence on the first shoplifting charge. Indeed, the testimony of one......
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Ramsey v. City and County of Denver
...evidence is "the proof of a chain of circumstances pointing to the existence or non-existence of certain facts." In Wilkins v. Hogan, 425 F.2d 1022, 1025 n. 1 (10th Cir.1970), we held proper under Kansas law a charge that "[i]n 'direct' evidence, witnesses testify directly of their own know......
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Krahn v. Pierce
...of a layman that we will disturb its judgment.' 366 F.2d at 253. However, it is interesting to note that in a later case, Wilkins v. Hogan, 10 Cir., 425 F.2d 1022 (decided May 18, 1970), the court was again confronted with an expert opinion concerning 'gouge marks' and 'debris' upon the hig......
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...connecting facts which usually and reasonably follow according to the common experiences of mankind." Id. (citing Wilkins v. Hogan, 425 F.2d 1022, 1025 n. 1 (10th Cir.1970) and Price Waterhouse v. Hopkins, 490 U.S. 228, 251, 109 S.Ct. 1775, 1791, 104 L.Ed.2d 268 (1989) ("Remarks at work tha......