*1 47,317 No. Mary Massoni, Massoni, by Celia R. Massoni and Jack
Jack Jane Guardian, Massoni, R. Mas- R. as Parent and Natural Jack Mary Massoni, Melissa De- Massoni, soni and Heirs of Jane Highway ceased, Appellants, Commission State Liberty In- Kansas, C., Inc., Mutual State Time-D. Appellees. Company, surance
(522 973) P. 2d Opinion May filed 1974. Sharp, Liberal, argued cause, Kerry McQueen, H. Gene Lib- eral, appellants. with him on the brief for the Larson, Dodge argued City, on the brief for the G. the cause and was B. C., Inc., Liberty Company. appelles Mutual Insurance Time-D. cause, Topeka, Wolf, Hugoton, argued and Paul W. Clark Paul A. *2 appellee highway brief for the commission. was with him state of the court was delivered This an action damages death, Harman, C.: for wrongful loss out of personal injury property arising a head-on collision between two passenger motor vehicles. Defendants in the action truck-trailer, are the owner of a its public liability carrier the state commission. Plaintiffs highway sought recovery on the the combined theory negligence truck driver and of the vehicle with which plaintiff’s vehicle collided plus statutory defects in the highway caused collision. The case a was tried to jury which returned a general verdict for the defendants and plaintiffs have appealed.
firstWe summarize the background facts revealed at trial. 20, 1969, on September The collision occurred S.U. highway miles northeast of 14.6 Liberal. approximately About one west of the area miles where the one-half collision occurred crosses Cimarron river. From highway the river bridge northeastward the went highway upgrade and contained three lanes for eastbound traffic marked lanes—two separated by white dashes, and one for westbound traffic. The stripes right hand traffic, a creeper lane for eastbound called climbing lane, was for use of trucks and vehicles heavy ascending the hill. A double line on the highway divided the eastbound from yellow the west- in the area traffic speed bound limit was seventy involved. As eastbound traffic hour. reached the per miles crest of hill the transition lane the highway entered curved slightly to right. highway department signs Various were posted along right side eastbound traffic. A short dis- northeast of road off to the taming tance Meade county state there was a width transition pavement sign lake which indicated right side of the narrowing a roadway. This sign was feet in of the- about 750 advance actual transition in the road. sign to the east there was a Beyond sign upon which the “merging traffic” legend appeared. Next there appeared a curve sign indicating right. a curve to Then in the transition area there where the collision occurred were five W 16 vertical panels east- where the two the roadway area of delineating tapered into one. merged lanes bound Celia Massoni day At 9:30 m. on the about a. J. southwesterly a direction Mercury automobile operating hill at a on the crest of the aforementioned Liberal point
toward sister, by her Melissa accompanied U. S. 54. She was Massoni, friend, Melissa were M. and a Vicki Hinz. Celia and R. and Mary Massoni daughters minor Jane Jack R. owned the automobile. Mercury Plaintiff Massoni Massoni. Jack behind a Mr. the Massoni An driven Olsen automobile direction, vehicle, and behind the in the Olsen traveling same his driving Mr. Hinman was automobile with vehicle wife also headed toward Liberal. as passenger, rig, sixty a truck-trailer feet length time
At the same C., Inc., defendant Time-D. wide, was pro- owned feet eight in the lane. northeasterly up grade creeper Rehind ceeding *3 in a northeasterly direction proceeding also was and truck being C. by Jerry owned driven Dean. automobile Dodge McHenry. McHenry accompanied was asleep was Dean Jerome just frantic Dean’s voice before the collision until awakened going?” is this or guy something similar. As the “Where saying, the unmarked entering transition was lane approaching truck made, being Dean signal turn was seen to any pull left without left, go in an effort to around the left side apparently out to his he was either at about the truck. As midpoint truck- rear, he at the collided almost head-on with rig trailer car forty-two The Dean laid down vehicle. feet of Massoni skid- crossed die yellow where it double point lines, center marks up skidmarks the roadway, feet more then there thirty-two then twenty-two a distance of feet to the point skidmarks no was three feet impact south of the point north of impact. at the extreme roadway right hand side of edge traffic, was 280 feet east lane of last of the Massoni marking the end of the lane. creeper After stripes white the Olsen vehicle collision swerved and missed the Dean-Massoni the Dean slid into car but vehicle. Dean and Massoni Melissa a result killed as of the collision. Massoni were Celia Massoni and burned and we are told seriously injured has no was memory roadway collision. The where the file collision occurred was feet wide. The width of the twenty-nine two-lane about roadway or twenty-five feet. twenty-four was
847 at trial will related occurring Other and events evidence however, raised on at this appeal; the matters connection with the basis of the claims it to mention asserted well point commission. against the defendant Plaintiffs by plaintiffs traffic was defective control signs contended with the sign maintained accord uniform manual were not it the commission and also that was adopted by defective in summarized, asserted the design. Highly curve sign was too close to should have the curve—it been placed from 500 to feet further back to give adequate warning; pavement transition should set sign width have been further west another feet in advance of the hazard —also a duplicate sign should have been the left side of the placed roadway to enable an east- it bound driver to see at a time when the view on right might lane; be blocked vehicle in creeper merging sign to cause inappropriate likely confusion; the transi- lane, tion to 425 feet in length, was too short—it should have long; been from 600 840 feet and a creeper lane should not end at beginning of curve in the highway toward the right.
Although we are not here called determine whether the evidence was sufficient to show that the highway defective, mention should also be made of the fact that evidence pro and con was received on that issue. Plaintiffs’ experts testified signs design mentioned did not conform to manual and blue- book and that requirements maintenance of the highway constituted a hazardous and dangerous condition—the highway commission produced who testified experts to thé contrary. assert several
Plaintiff-appellants trial errors. We shall first con- sider two which in the unanimous' opinion of the court constitute *4 trial, error requiring reversible new although the court is divided as to the reasons. collision a
Shortly after the patrolman, Trooper Schlegel, had had six years’ experience who investigating acci- scene, dents, to the conducted an went investigation and a made by as witness appellants, Called he report. testified as to the him. Upon facts ascertained cross-examination by counsel for the following the truck occurred: company, your Now, Trooper, findings, as the result of accident, “Question: this only contributing you one listed circumstance to I believe the accident. Is correct? Sharp: going object question. to to the form We are of “Mr. the It is calling jury of the witness. the invading province for the question please. your Rephrase ‘The Court: right. All “Mr. Larson: find, anything, you been (By Larson) if have did What Mr. “Question: contributing this acoident? circumstance the Sharp: calling object going form of as the areWe “Mr. of the witness. the and conclusion question. expert. qualified the I will as an He is “The Court: my report Witness) listed on cause of the (By the "Answer: overtaking 2. on the vehicle number improper was to? that refer does Who “Question: number 2. Vehicle “Answer: Dean? Was “Question: vehicle.” Dean “Answer: of reception in several in the respects error assert Appellants two think the matter controlled We evidence. foregoing 480, Kan. Ziegler Crofoot, expressed rules separate time had not been rendered at the yet which decision 2dP. that at bar. was similar to posture Ziegler's this case. trial had investi highway patrolman who cross-examination Upon permitted collision in he was question, the intersection gated under the column report that in written objection, over testify, he plaintiff showed driver Circumstances” “Contributing on the of the defendant way; right yield failed for the judgment were Jury “None”. verdict indicated he this admission of challenged plaintiff On appeal latter. here, “that said things, usurped other among urging, should by stating ultimate facts which jury province determination”, final jury’s (p. 483.) reserved been have court it pointed divided out judgment affirming 60-456 expert testimony S. A. form (d) K. that under objectionable is not admissible because it em otherwise opinions issues to decided by issue or ultimate trier braces testimony, which was held said to be ad We fact. missible: opinions requested given case under consideration the “In the parties, any, to the actions of the if directed contributed cause the subject We believe the on this accident. would assist understanding summarizing material in the evidence and objectionable.
it was question merely “. . The patrolman called for the s conclusion as to parties, any, actions of the if what contributed to the accident. The
849 contributory fault, negligence or to as ultimate decisions free to make the requirements K. A. S. all negligence. if In intersection an opinion as permitted give his may to expert 60-456 met an are otherwise any, contributed to parties, if which to actions and circumstances 487-488.) (pp. accident.” language to certain However, approvingly we referred Ziegler in 10, wherein the (CA 1971) used in F. 2d Henry, Frase Kansas statutes circuit examined federal court of for this appeals exists assur- that there still to pertaining evidence cautioned the jury what merely ances tell against admission opinions only up admissible to reach, result to are stating that opinions to point expert would require an expression opinion where we pass Ziegler on the of the evidence. credibility weight also said: give opinion “This expert court to to who ivas ai feels that an causing permitted.” in objectionable an accident and should not be
fault (p. 487.) We there concluded the questions patrolman form the and the s answers were not subject to Thus it will foregoing objection. be seen a narrow distinction been drawn in determining has ad- missibility type of opinion evidence. The rules stated are that an expert witness an as what may give aotions of to the parties, if any, contributed he may collision but not give an opinion as who was at in causing fault the collision.
In the case at bar of the court is of majority answer of the highway the cause of patrolman (that the accident was im- proper overtaking vehicle, of Dean which answer was not directly responsive falls question) within the category the. said Ziegler be objectionable and constitutes reversible error.
Another majority of court (necessarily with some overlapping) is of opinion under presently challenge improperly reason, received for another rooted K. S. A. 60-456 also (b), men- tioned in and stated as follows: Ziegler [Olpinion testimony “. is not without although limitations and an permitted may give opinion bearing witness on the ultimate only issue he so insofar do will aid interpre tation of technical facts or assist when it will understanding (Staudinger Pipe Supply material evidence. v. Sooner & Corporation, [208 Syl. 6.)” (pp. 486-487.) 619] Kan. 490 P. 2d ¶ A. (b) provides: K. S. 60-456 testifying expert, “If the witness as an of the witness in the opinions opinions
form of or inferences is limited such judge as the finds *6 personally or made perceived known or (1) facts or data based are on special scope (2) the hearing the within at and to the the known witness of (Our possessed by em- experience training the witness.” skill, knowledge, or phasis. ) 67, considered 188, 416 2d we Pereboom, P. 197 Kan. In Gardner stated: and foregoing the laymen jurors permit qualifications of experience and the normal “Where circumstances, expert given and proper facts from them to draw conclusions and are opinions the circumstances from facts or to be drawn conclusions 7.) (Syl.
inadmissible.” ¶ Edition, (Sixth The matter is in Evidence elaborated Jones thus: 14:28 Gard) § weighing “Although usurp jury expert may function of the an witness not arriving are, a deciding of at the evidence and the facts the what quite is reasonable from believed faotual conclusion the evidence which to, This, jury function, other matters in or another matter. is a but technical special skill, requiring knowledge, like, experience, the or the and the judge trying may of those the case at without the aid who sea quite mysteries they experince or no in such understand the than of little better matters. general may that still rule the effect that a “If it said there exists fact, opinion upon may express an ultimate issue it is witness rule it relaxation of the turns into what amounts extensive obvious that the receipt expression the courts reluctance or reserve even to substitute the for the expert would seem witness judge in final decision. On basis what would seem to be reflecting and be looked as a trend confusion conflict toward abitrary not an view. common sense and This sense view common is to appears it where the trier of the fact receive impeded in the prob- be assisted rather than solution of would the ultimate (p. 660.)
lem.” rule discussed Smith v. Lockheed Propulsion Co., 128, 774, Rptr. 56 Cal. ALR 3d 2d as App. Cal. follows: determining expert testimony “The crucial consideration whether should subject inquiry is whether ‘. be received is one of such knowledge ordinary men education common could reach conclusion whether, intelligently hand, as witness as the other the matter sufficiently experience beyond common of am ” (p. 783.) trier of fact.’ would assist the bar were eyewitnesses In the case at there five to the collision who driver; McHenry, The truck passenger testified: the Dean auto- mobile; vehicle; Hinz, Massoni passenger and Mr. and Mrs. following Hinman were Olsen and who Massoni vehicles. Testi- positions the vehicles mony respecting involved and estimates at testified patrolman received. speed their at the scene investigation and his observation concerning length photographs and aerial charts Diagrams, the collision. after shortly measurements estabhshing pertinent the scene depicting and con testified indicated", pro experts As presented signing the propriety as to their views aired fully their as to differed experts Although highway. design were such conditions and road the signs opinions, conclusions every- of persons experience within as are encountered from arising or dispute difference was little and there where happened. what just other that the matters the opinion court is of majority This other *7 knowledge common of the sufficiently beyond not issue were at would be to expert helpful the opinion ordinary persons or technical nature. complicated case was of a the experience where normal was one words situation other have enabled them to would laymen jurors and qualifications aid of expert without the conclusions or conclusions draw proper situation is inadmissible testimony In such a opinions. Pereboom, supra). (Gardner well dispose as of the just allegation reached
The conclusions called both by of witness appel- receipt error die lees, Forman. his direct examination the Upon following W. George occurred: your investigation, your right. reconstruction, All Based “Question: you, you opinion do and all of the information available have an as to the September 20, of this accident on 1969? cause Yes, I “Answer: have. you Jury, please? And would state “Question: Sharp: going object, Honor, “Mr. which To we are Your as insufficient foundation, calling for an and conclusion of the Witness which invades province Jury. “The Court: Overruled. (By Witness) proximate “Answer: I am of the oause of improper overtaking this accident was an action on the of the driver of automobile, Dodge Jerry proceeding speed Mr. Dean. He was at a probability unreasonable, excessive, attempted
in all and to overtake improperly clearly merging at of a the end marked creeper lane to highway.” the normal two lane must be held Receipt erroneous in the same fashion as that of highway patrolman.
Complaint also made of trial court’s refusal to admit causation of offered expert testimony by appellants respecting Smith, witness, at L. professor collision in Bob question. study had training, Kansas State who had extensive University, testi- design signing, in the field of experience design fied at without that the length, objection, signing good design require- did not conform to manual ments, highway dangerous and that these defaults rendered the to traffic and to an The trial court could contribute accident. objections then sustained to further questions appellants to the cause of not an the collision on the basis witness was think this testimony reconstructionist. We is likewise ob- jectionable under the rules stated in rather than for Ziegler, given by reason trial court.
Since new trial directed mention should be made of being further raised fact points They appellants. complain each appellee was allowed three peremptory challenges jury while appellants were limited to a total of K. S. A. three. 60-247 Supp. provides pertinent part: “(b) Challenges. cases, party (3) In civil each shall be entitled three peremptory challenges. . Several defendants several shall single party purposes making challenges. be considered as a If judge good is more than there one defendant and if the finds there is a faith controversy existing defendants, between the the court shall the de- allow peremptory challenges fendants additional them be exercised separately jointly.” finding
The crux of the matter is whether a the trial court *8 that a faith good controversy existed between the defendants was justified. We think it was. In their that petition appellants alleged the combined acts of both appellees damage. caused their their answers both appellees denied these The allegations. highway com- mission that additionally responded appellants’ damage caused either of Dean or that neglect truck driver. The record does not contain appeal any order pretrial further re- the issues nor it fining does contain to the jury. instructions it of the record would that the appear this state interests of Upon good at least adverse and a faith were appellees controversy Appellants them existed. have not demonstrated between other- is akin to in Lehar v. Rogers, wise. The situation 208 Kan. P. 2d 1124. There the sued plaintiff the city maintenance of a traffic negligent Wichita for control device of an automobile another driver involved in a collision with plaintiff. The defendant driver in the alternative that plaintiff’s pleaded were damages caused than de- by negligence parties other fendant. The two defendants were each allowed three peremptory challenges. this court Upon plaintiff’s appeal stated: posture, “. impaneling jury, . . case in With the at the time good controversy the trial court could have found a well faith between the City Rogers proximate defendant the issue of cause. The trial court express finding controversy did not make existed between defendants ground. objection but made no on this . We find no error respect handling peremptory challenges.” shown with the trial court’s (pp. 837-838.) Appellants make certain statements for complaint by counsel highway commission his statement to the opening jury. statements had to do with manner in which C. Dean Jerry drove vehicle at the time of the collision and the fact his estate was not being sued the action. were They made after counsel had appellants told they expected would appellees try to all the blame for the lay Dean. Aside from the argumentative aspect statements we challenged see noth- ing with them. wrong
Finally, appellants complain language used counsel commission argument in his closing Counsel referred to fact obliquely jurors were taxpayers and public funds would be used pay any judgment which might be rendered against the state. No objection was voiced at the time the state- ments were made nothing further was said to the about the matter.
Unprovoked argument jurors’ directing attention to the fact that any rendered judgment will be from tax funds paid constitutes an improper to the self-interest of the appeal jurors anno. (see corrected, ALR 2d if 442) effectively may be held to be prejudicial error reversal or new trial. requiring The statements here but we complained improper need not assess their of the fact new trial prejudicial impact view is being ordered for erroneous admission of evidence. judgment reversed the cause remanded with direc-
tions to motion for new grant appellants’ trial.
approved by the court. J.,
Fontron, concurs in the result. *9 dissenting Concurring part. I con- Although Owsley, J.: rule from the dissent respectfully in this case cur in conclusion I meaningful any to draw unable 2. I am Syllabus of law stated f and “caused” collision to a between “contributed” distinction posed A of a witness. with relation collision alternative, what accident, to an as to what “contributed” expect To answer. accident, for identical calls an “caused” bench ridiculous. words is between these distinguish witness to interchangeably these words used and bar of this state have is an distinguishable are the words To now decide many years. judicial power. use of improper syllabus This the opinion. 5 of Syllabus
I dissent from also ¶ are adverse defendants multiple where the interests states that them, among exists controversy so that a faith good another one challenges peremptory to three each defendant entitled such on an depends interpretation this rule law basis 60-247, K. which provides: S. A. 1973 Supp. entitled, (3) Challenges. cases, party “(b) three shall be In civil each challenges. peremptory shall or several . Several defendants challenges. purposes making single party If as a considered for the judge good than there is a faith there is more one and if the finds defendant existing controversy defendants, the court shall allow the de- between peremptory challenges permit fendants additional them to be exercised separately jointly.” As I read this statute each to a lawsuit three party is entitled to It peremptory when there is a challenges. only good faith contro- versy between defendants that court can multiple allow defendants additional I in the challenges. see peremptory nothing statute which provides each defendants under these circumstances is entitled to challenges. three I con- peremptory strue the statute court to allow additional peremptory challenges, and that the number of additional chal- peremptory lenges and whether they exercised separately or is dis- jointly cretionary. Whatever action of the trial court court be this can only review such action die basis whether trial court’s action resulted an abuse I of discretion. approve granting of three additional peremptory case, challenges but I cannot do so on the basis the statute makes it mandatory three grant additional peremptory when a challenges faith good controversy exists. joins J., the foregoing concurring
Prager, dissenting opinion.