Williams v. Esaw

• Decision Date: 11 May 1974
• Docket Number: No. 47228,47228
• Citation: 522 P.2d 950,214 Kan. 658
• Parties: Dwayne WILLIAMS and Deloris Crist, Appellants, v. Glenn ESAW and San Ore Construction Company, Inc., Appellees.
• Court: Kansas Supreme Court

Page 950

522 P.2d 950

214 Kan. 658

Dwayne WILLIAMS and Deloris Crist, Appellants, v. Glenn ESAW and San Ore Construction Company, Inc., Appellees.

No. 47228.

Supreme Court of Kansas.

May 11, 1974.

Syllabus by the Court

1. Where no causal connection exists between the breach of a statute or city ordinance and the wrong or injury complained of, its violation will not bar a recovery.

2. The violation of a traffic law, either state or municipal, will be held to give rise to liability for injury only where the violation bears a causal or proximate relationship to the injury.

3. The violation of the provisions of a driver's licensing act or of restrictions contained in a license issued thereunder, so far as the question of contributory negligence is concerned, will not defeat recovery for injuries sustained in a motor vehicle accident unless the licensing violation proximately contributes to the injuries received.

4. Before legal liability for damages may be predicated on the commission of an unlawful act there must be a causal relationship between the unlawful act and the damage sustained other than a mere coincidence of time and place.

5. In the operation of motor vehicles a minor is to be held to the same standard of care and caution as an adult.

6. The record is examined in an action to recover damages for the death of a minor resulting from a collision between his motorcycle and a truck, and for reasons appearing in the opinion it is held (1) the trial court erred (a) in admitting into evidence a restricted driver's license issued deceased in Oklahoma, (b) in instructing on Oklahoma law in respect thereto and (c) in submitting instructions to the jury as to K.S.A. (now K.S.A.1973 Supp.) 8-540(a) and (b); (2) the trial court did not err (a) in refusing to instruct on the doctrine of last clear chance, (b) in permitting a defense witness to testify as an expert and (c) in its instructions concerning the care required of a minor in the operation of a motor vehicle; (3) certain language contained in Harvey v. Cole, 159 Kan. 239, 153 P.2d 916, is disapproved so far as it relates to the standard of care applicable to a minor in the operation of a motor vehicle.

Gerald W. Scott, of Blair, Matlack, Rogg, Foote & Scott, P. A., Wichita, argued the cause and was on the brief for appellants.

Raymond L. Dahlberg of Turner, Chartered, Great Bend, argued the cause, and H. Lee Turner, Great Bend, was with him on the brief for appellees.

FONTRON, Justice:

The plaintiffs bring this action to recover damages for the death of their fourteen-year old son, Monty D. Williams, who was killed in a collision between his Yamaha motorcycle and a San Ore Construction Company truck driven by Glenn Esaw. The jury brought in a verdict in favor of the defendants and the plaintiffs have appealed, alleging various trial errors.

The accident occurred in Sedgwick county about 8:30 a. m., July 30, 1970, near the intersection or junction of 85th Street North, which runs east and west, and Interstate 35, a north-south highway. There is a grade separation where the two roads intersect, with I-35 overpassing 85th Street. A short distance east of the overpass an exit ramp leads from the south side of 85th to the interstate highway. On the date of the accident the exit ramp to I-35 was closed to public traffic and was so marked.

Monty Williams was proceeding west on 85th Street. He was on his way to a farm owned by his father near Valley Center, where he was to turn on the irrigation pump. At the same time the two-unit San Ore truck, composed of a tractor and a large water tank or trailer, was also headed west, the driver intending to make a left turn onto the exit ramp and then proceed to I-35 where his job was to spray the base of that highway. It was during the course of the left-hand turn that Monty's motorcycle skidded under the rear part of the water tank and both Monty and the cycle were dragged across the pavement into the exit ramp. Monty appears to have been killed instantly. It was not a pretty death. Further facts will be noted as needed.

Six points of error, in all, are advanced by plaintiffs in their brief, but only two were argued when the appeal was heard. We shall first consider these two points in the order presented.

A number of complaints are grouped together in point number one, the principle thrusts of which are that the court erred in admitting Monty's restricted driver's license, and in instructing on the Oklahoma statutes under which the same was issued. The Oklahoma license limited the operation of motor vehicles by persons under sixteen to vehicles of five horsepower, and there was evidence to the effect the horsepower of the cycle manned by Monty was greater than that, being in the neighborhood of fourteen or fifteen.

A strong argument is made by the plaintiffs in the area of causation. They stoutly contend that the Oklahoma license, with its horsepower restriction, bore no causal relationship to the accident-in other words that Monty's violation of the restriction, if any, was not a proximate cause of the collision and his resulting death.

It is a well recognized tenet of the law that before liability can be predicated on the violation of a statute there must be a causal relation between the violation and the injury complained of. This viewpoint is well expressed in Zumbrun v. City of Osawatomie, 135 Kan. 26, 10 P.2d 3, in this language:

'. . . It is familiar law that, where there is no causal connection between the breach of a statute or city ordinance and the wrong or injury complained of, its violation does not bar a recovery. Williams v. Electric Railroad Co., 102 Kan. 268, 271, 170 P. 397; Griffith v. Atchison, T. & S. F. Rly. Co., 132 Kan. 282, 286, 295 P. 687; 45 C.J. 902-905.' (p. 34, 10 P.2d p. 7.)

This time-honored rule has been carried over into the area of motor vehicular accidents, where the violaton of a traffic law, either state or municipal, is held to give rise to liability for injury to another only where the violation bears a causal or proximate relationship to the injury. (Jones v. McCullough, 148 Kan. 561, 83 P.2d 669; Clark v. Southwestern Greyhound Lines, 148 Kan. 155, 79 P.2d 906; Applegate v. Home Oil Co., 182 Kan. 655, 324 P.2d 203; Oil Transport Co. v. Pash, 191 Kan. 229, 380 P.2d 341; Ripley v. Harper, 181 Kan. 32, 34, 309 P.2d 412; Rohrer v. Olson, 172 Kan. 674, 677, 242 P.2d 825; Crawford v. Miller, 163 Kan. 718, 721, 186 P.2d 116; McCoy v. Fleming, 153 Kan. 780, 783, 113 P.2d 1074.)

In Goodloe v. Jo-Mar Dairies Co., 163 Kan. 611, 185 P.2d 158, this court, in discussing motor vehicle collisions, spoke in this fashion:

'. . . (M)ere violations of an ordinance or statute regulating traffic, such as excessive speed, defective equipment, driving down the center of the highway, or other matters of a similar nature, are not sufficient to make the driver of an automobile guilty of actionable negligence in an action involving a collision unless it appears from the evidence that such violations contributed to the accident and were the proximate cause of the injuries therein received. . . .' (p. 618, 185 P.2d p. 165.)

The same rule was declared in the more recent case of Lewis v. Service Provision Co., Inc., 209 Kan. 378, 382, 496 P.2d 1373, where the plaintiffs, suing for the death of their son, attempted to make an issue of the fact that defendant's truck, which struck decedent's car pulling in front of it on I-35 near Guthrie, Oklahoma, was overweight under Oklahoma law. In the course of our opinion rejecting the plaintiffs' argument, we said:

'The violation of a traffic law does not establish actionable negligence as a matter of law unless it is made to appear that the violation was the proximate cause of the injury. . . .'

On the issue of contributory negligence, the question in the present case was not whether Monty violated Oklahoma licensing statutes, but whether he was guilty of negligence which was a proximate cause of the accident and his resulting death. The general law with respect to the violation of statutes regulating the licensing of drivers seems reasonably stated in 7 Am.Jur.2d, Automobiles and Highway Traffic, § 368, p. 915:

'. . . The absence of a valid driver's license, so far as it concerns the question of contributory negligence in an action to recover for injuries sustained in a motor vehicle accident, does not defeat recovery unless such licensing violation proximately contributed to the injuries in question.'

This court expressed the same philosophy in an era when motoring was more novel than it is today. In Anderson v. Sterrit, 95 Kan. 483, 148 P. 635, the plaintiff was a sixteen-year old bicyclist who was injured in a night-time collision with an automobile. It developed that the plaintiff had no license to ride his bicycle and that he carried no light, both being contrary to city ordinance. In upholding the trial court's judgment in favor of the plaintiff, this court said that the absence of a license on the part of the plaintiff was not a factor causing the collision or contributing to the injury.

In McCausland v. File, 141 Kan. 120, 40 P.2d 323, the plaintiff was a nine-year old child who was struck by defendant's car when returning home after a nine o'clock show. She was not accompanied by parent or guardian, as required by city ordinance. This court said in that case:

'There was no proximate cause of the plaintiff's accident in being unaccompanied by her father when defendant was negligently driving his automobile and causing the injury. None was alleged by defendant, and it only gave the opportunity for the accident. . . .' (p. 121, 40 P.2d p. 324.)

The rationale of the foregoing cases was aptly phrased in State v. Yowell, 184 Kan. 352, 336 P.2d 841, where the defendant was faced with a charge of fourth-degree manslaughter as a result of a rearend collision which occurred during the time his driver's license was suspended. In the...