Zell v. Luthy

• Decision Date: 05 April 1975
• Docket Number: No. 47586,47586
• Citation: 533 P.2d 1298,216 Kan. 697
• Parties: William E. ZELL, Appellant, v. Mary M. LUTHY, Appellee.
• Court: Kansas Supreme Court

Page 1298

533 P.2d 1298

216 Kan. 697

William E. ZELL, Appellant, v. Mary M. LUTHY, Appellee.

No. 47586.

Supreme Court of Kansas.

April 5, 1975.

Syllabus by the Court

In an action for damages arising out of a rear end automobile collision, which occurred on a snow covered street, the record is examined and it is held: (1) In the light of all the instructions given and the evidence presented in the record the giving of an instruction on the doctrine of sudden emergency was not prejudicial to plaintiff and (2) the general verdict for defendant is not contrary to the evidence.

George A. Lowe, Olathe, was on the brief for the appellant.

Barton Brown, Overland Park, was on the brief for the appellee.

KAUL, Justice:

This is a rear end collision case in which the jury rendered a verdict for the defendant (Mary M. Luthy) and plaintiff (William E. Zell) has appealed. The ultimate question presented is whether the giving of an instruction on the doctrine of sudden emergency amounted to prejudicial error requiring a reversal. Plaintiff also contends the verdict was contrary to the evidence.

At approximately 4:45 p.m. on the afternoon of February 13, 1970, plaintiff was driving his automobile south on Nall Avenue toward the intersection of 83rd Street in Prairie Village. At the point in question Nall Avenue is a normal two-way street with a ditch on either side and no curb and is approximately twenty-eight feet in width. The posted speed limit is thirty-five miles per hour. At a point about 600 feet north of 83rd Street there is a crest of a small hill with a descending grade of twenty to twenty-five degrees incline as Nall Avenue runs south to 83rd Street. Plaintiff testified that as he came over the crest, heading south on Nall, he was traveling about twenty miles per hour; he started to slow his automobile as he approached the stop sign on Nall at the 83rd Street intersection. As to the condition of Nall Avenue plaintiff testified:

'I consider the place on the road where the accident happened to be somewhat dangerous. It was slick, as was the whole area from the crest down to the base. I had been sliding somewhat from the time I went over the crest down to the point where the accident happened. I would not use the word fishtailing, although my car may have slid slightly. I was having a slight difficulty in coming to a stop, but my vehicle was definitely never out of control. Rather I had full control although I had previously slid slightly.'

Plaintiff further testified that he had new snow tires on his automobile; that he had slowed his speed to approximately three to five miles per hour at the time of impact; and that he had not yet reached the stop sign on Nall Avenue preceding the 83rd Street intersection. His first notice of the accident was when defendant blew her automobile horn, which occurred almost simultaneously with the impact. The impact spun plaintiff's automobile around so that it was facing in a northerly direction on Nall Avenue and came to rest about forty to fifty feet north of the 83rd Street intersection.

At the time of the accident defendant was enroute home from her place of employment. She testified that it had started to snow before she left work about 4:30 p.m.; and that she was driving cautiously because of the snow. Her automobile was equipped with Uniroyal Master snow tires and was in good mechanical condition. She did not encounter any slick places on her route until she reached the scene of the accident. Defendant testified that she had stopped at four previous stop signs along the way and had encountered no difficulty, although there was snow on the pavement. She had traveled the same route many times since it was her normal way home from work, and had also traveled the street many times when it was snowing. Defendant's testimony describing the circumstances preceding the collision is narrated as follows:

'As I came over the top of the crest of Nall, I noticed Mr. Zell's car for the first time. You really can't see 83rd and Nall until you reach this crest. To the best of my judgment, I was going 20 miles per hour when I reached the crest of the hill, and I was being cautious because it was snowing. I saw Mr. Zell's car zigzagging in front of me and realized at that moment that it was slick up ahead. By zigzagging, I mean that it was just sliding toward the intersection, although it remained entirely within its own lane. Realizing that it was slick ahead, I tried to stop and could not, so 'I just leaned on the horn rim and prayed.' I put the brake on and I guess I kept it on. My car did slow some before I slid into the back of Mr. Zell's car, which was still moving at the time. After impact, my car went sideways and into a little depression on the side of the street. . . .'

Officer Milan VanHouton, of the Prairie Village Police Department, arrived at the scene soon after the accident. He testified it was snowing and that the street was slick at the scene of the accident. He related defendant's statement to him--

'. . . She said that as both vehicles attempted to stop for the four-way stop, she lost traction on her rear wheels and struck Mr. Zell in the rear end. . . .'

There is no testimony from Officer VanHouton that he gave either of the parties a citation for a traffic violation.

Over objection of plaintiff's counsel, the trial court submitted PIK (Civil) 8.81 relating to the sudden emergency doctrine. The instruction reads:

'When one is suddenly confronted by an emergency not of his own making, consisting of circumstances that call for immediate, instinctive action, he is not required to exercise the same degree of care that he would be required to exercise had he time for reflection. Under such circumstances he is required to exercise such care as an ordinary person would exercise when confronted by a like emergency under circumstances then existing. The rule of sudden emergency cannot be invoked by a person who brought the emergency upon himself by his fault or did not use ordinary care to avoid it.'

Plaintiff strenuously argues that there was no emergency and in the alternative if there was defendant created it and, therefore, it was prejudicial error to submit the instruction.

Defendant says that the emergency which confronted her was a slick street and she argues that the emergency was 'sudden' because until the time of the accident she had not encountered any icy or slippery conditions sufficient to cause her to slide and, therefore, she had no reason to anticipate the slick spot that caused the accident.

Although the 'emergency' instruction cannot be said to be erroneous as an abstract proposition of law (Mesecher v. Cropp, 213 Kan. 695, 518 P.2d 504), we have questioned the practice of giving it in several recent cases. Even though not confronted with a specific claim of error based on giving or failing to give the instruction in Lawrence v. Deemy, 204 Kan. 299, 461 P.2d 770, the reasoning expressed therein serves to explain the court's view concerning application of the doctrine in a negligence action. In Lawrence the question arose by appeal from a summary judgment for defendant rendered on the basis that discovery depositions disclosed undisputed facts establishing that defendant had acted in a sudden emergency and, therefore, was not negligent as a matter of law. In reversing the judgment below we had this to say:

'The doctrine of sudden emergency cannot be regarded as something apart from and unrelated to the fundamental rule that everyone is under a duty to exercise ordinary care under the circumstances to avoid injury to others. A claim of emergency is but a denial of negligence. Application of the doctrine is really application of the test for negligence couched in language tailored to a peculiar situation. The fact that a person is confronted with a sudden emergency not caused by his own tortious conduct which requires rapid decision is merely a factor in determining the reasonable character of his choice of action and whether his conduct constituted negligence. . . .' (p. 303, 461 P.2d p. 774.)

Lawrence v. Deemy, supra, was followed by our decision in Kline v. Emmele, 204 Kan. 629, 465 P.2d 970, wherein we elaborated on the reasoning of Lawrence and held:

'A defense of sudden emergency is but a denial of negligence and where negligence, burden of proof and proximate cause have been...