*1 45,939 Rohr, Michael G. his Father Next through Julius Friend, Henderson, Appellant. William F. Appellee, v. (483 1089) 2dP.
Opinion filed April 10, 1971. Bieker, argued Dreiling, Dreiling Hays, Norbert of the cause R. of and and appellant.
was on the brief for the Glassman, Hays, argued Robert F. of the cause and on the brief for was the appellee. The of the court delivered opinion by was C.: This an- interpretation involves
Harman, swers to court the trial rendered upon suit for injuries arising in a plaintiff personal out aof bicycle-automobile collision.
Inasmuch as the the answers parties stipulated have to the special questions supported by competent were evi- ample dence, we have little in as the the record circumstances However, we a thirteen old glean year boy, riding street, was his near on Main bicycle southeasterly street, Kansas, intersection with Twenty-third and while Hays, process was turning by by struck automobile driven defendant, eighteen driving in a years age, southerly who was direction on Main street. trial, instructed,
The parties went to the jury upon issues cause, of negligence, proximate negligence and contributory of last clear chance. The instructions included the following: “No. plaintiff alleged defendant, “The recovery against has also a basis for as plaintiff doctrine of Last Clear Chance. Before the can recover under this particular doctrine, elements must be established: “(a) plaintiff by negligence placed position The his in a own himself peril from which he could not extricate himself. “(b) plaintiff defendant saw the in a or in the ordinary exercise of plaintiff position, care should have seen in such by ordinary plaintiff. exercise of injuring care could have avoided “(c) ordinary defendant failed to exercise such care. “(d) part, plaintiff a result of such on As failure defendant’s injured. just by you “If all the conditions are mentioned found have existed
respect question, to the occurrence in then under such conditions the law a direct any injury holds the defendant liable plaintiff. contributory negligence occurrence, despite result “No. 10 determination of fact for the “You are instructed that all issues your questions, special being to which in the form of submitted to the special your will answers answers will court. your special under all of the instructions constitute unanimously by must be reached “Your to these questions, completed your you. to these When verdict, sign by your and return with them foreman answers constitute them into court. “No. 11 injury in the natural “A of an or loss is that cause which cause, produces intervening sequence, and continuous unbroken efficient injury occurred. the result would not have without which than “There be more “No. 13 *3 to “Contributory negligence the standard conduct falls below is which protection ordinary, prudent person conform for his own
which an should legally property charge, con- protection under his opposing party in tributing cooperating of the cause bringing injury damage complained of.” about instead, special to the jury; was submitted general No under were submitted in the form of (a). K. S. A. 60-249 during occurrence following
The record on reveals the trial: May going jury M. of at 1:27 P. “After room for their deliberations 15, 1969, jury 3:10 P. M. and the returned to the courtroom at proceedings had:
further were Jury, the court delivered to Gentlemen of the the bailiff has : “The Court reading by foreman, writing jury, signed as follows: message in from the they so, yes? If and if are both and 3 both answered ‘Can be in favor of yes, a verdict demand under the law answered does this itself Signed by Also, proximate the foreman. ‘Please define cause.’ the defendant?’ questions Gentle- “Now, take the first first. there. I will there are two you all of the Jury, are to follow Court’s instructions of the under the men of the Court’s in- and answer the Court’s instructions liability, any, evidence, if determine and the Court will and the structions questions. you I And will note that your all of the answer to from question, out, is No. 6. the last pointed and I will read any, your liability, to all ‘Although determine the Court will preponderance of evidence the questions, please foregoing state from a fully compensate Michael G. money you find will amount damages him.’ “You will note under the Court’s instructions and the you specifically liability, are not asked to determine the Court will make that determination, judge your will make determination from special questions. answering special questions, you all inAnd these Now, to follow all of the Court’s instructions. I think that answers first question. “Now, message the second item in the to the court ‘Please define sent proximate Jury, cause.’ Gentlemen of the is defined in the that term Court’s again. instructions in Instruction No. and I read instruction No. 11 will proximate injury ‘A cause of an natural and or loss is that cause which in the sequence, intervening cause, produces continuous unbroken efficinei injury and without which occurred. There the result would not have proximate more than one cause.’ “Possibly you there, overlooked it in the instructions that definition but —again point I will out Instruction No. 11. “(The jury room.)” then returned to the answers returned questions submitted to the and the were as follows: “Special Special Verdicts Questions you place preponderance “1. Do find from a at of evidence that collision, Henderson, negligent the defendant in manner William F. alleged plaintiff’s petition, of the collision? which was a cause “Answer: Yes “(Yes no) you foregoing question ‘yes’, “2. If act or acts answer the then state the negligence. William F. Henderson that such constituted attempt- conditions; speed prevailing Failure to reduce under “Answer: ing pass namely, on a curve and overtake and conditions unsafe at an intersection. place preponderance
“3. Do at the time and find from a of evidence that negligent ain manner Micahel G. Rohr was alleged answer, defendant’s which was collision? “Answer: Yes *4 “(Yes no) or you If foregoing question “4. ‘yes’, or acts of answer the the act then state negligence. Michael G. Rohr that constituted such Driving bicycle roadway. right his on other than the half of the “Answer: Making abrupt giving any signal. turn without “5. Do preponderance find F. from a of evidence that defendant William Henderson had the “last clear chance’ to avoid the as that term is defined in instruction No. 9? “Answer: Yes “(Yes no) Although liability, any, “6. the court will determine answers foregoing questions, please preponderance to all the state from a fully compensate money you find will evidence the amount damages him. Michael G. $6,500.00.” “Answer: for plain- these the trial court rendered Upon $6,500.00. tiff for Defendant has appealed. is clear chance contention the doctrine of last
Appellant’s is that finding eliminated as means of recovery upon specific He injury. cause of his plaintiff’s negligence was a proximate asserts jury’s finding negligence compels of contributory findings. of judgment against Appellee the other appellee despite to the special ques counters with the jury’s contention of all light tions when read as a whole and construed inconsistent evidence and the court’s instructions presented entered. conflicting but are harmonious with the judgment our former pro relies on familiar cases Appellee arising harmonizing cedural code wherein rationale was applied He general argues its of fact. special findings verdict with intent not a jury negligence was clear that his however, cases, cited recovery. cause so as defeat None general because the here rendered no verdict. applicable Indeed, to obtain design procedure fact limited knowledge answers to or the other findings (see as to will favor one side whether Co., & Skidmore v. Baltimore O. R. 167 F. 2d We are not 54). of ulti intention on issue concerned with the primarily and none no occasion to resort to evidence mate must stand or fall on the has been supplied. the record. answers considered frequently approved of last clear chance has been The doctrine concisely Its elements were stated in this state. applied Co., 2d & 21 P. S. Rld. City, Goodman v. Kansas M. follows: . be said to be made last clear chance doctrine of the “The negligence, placed Plaintiff, by (1) himself up his elements: (3) negligence danger; (2) had defend- position his ceased; in a care exercise of due seeing plaintiff in a ant by exercising on his position, due care him in such seen should have plaintiff; (4) failed to injuring that defendant to avoid a clear chance had (5) failure care, of such as a result due exercise such 512.) injured.” (p. ceased must have that a plaintiff’s requirement *5 128 Derricott, 533, 596,
was explained in Letcher v. 191 Kan. 383 2dP. where we said: phrase plaintiff’s negligence “The use of the caused ‘that had ceased’ has phrase means, perhaps some confusion. ‘that the the better term plaintiff had, by negligence, peril placed her own herself in a plaintiff from which she could not extricate herself.’ If the could extricate danger, so, negligence herself from the not ceased. and did do her had not
If negligence could had not extricate herself from her (p. 600.) ceased.” Recently we considered the in Sander v. Union Pacific Co., Rld. 748, 205 Kan. 470 P. 2d a fatal train-automobile collision case. This too was a in which the trial court situation had rendered a upon special verdicts plaintiffs form liable defendant questions finding under the last clear con chance The record on doctrine. evidence, tained the plaintiffs’ review of convinced this court were, law, decedents a matter of such contributorily negligent, In negligence until continuing up very time reversing the stated: court principle “A fundamental law that the last clear doctrine is in- chance applicable plaintiff’s contributory negligence where and is not shown continues stated, to have ceased. As sometimes there can be no under the negligence parties [Cita- doctrine where the has remained concurrent. (p. 598.) tions.]” In Co., 279, 194 Ross v. R. I. & P. P. 2d Chicago, Rly. this court considered negligence seeking to recover under the last clear chance theory said: applicable long plaintiff’s “The doctrine of last clear chance is not so as the contributory negligence stated, continues. Otherwise there can be no negligence parties under the doctrine where the has remained concurrent. readily apparent [Citations.] The reason for this rule is when the standpoint Approaching considered from the the doctrine point many, all, [Citation], from that of view as but not courts do where plaintiff’s negligence ceased, regarded has it is as remote the defendant’s negligence regarded follows is as the cause of the thereafter negligence plaintiff’s accident. It is thus clear that if the has continued until and, negligence, the time of the accident without such the accident would not occurred, recoveiy (p. 286.) cannot had.” case, In the instant under the instructions and the form of the submitted, the jury necessarily found that appel- lee’s had Instruction ceased. defined proxi- mate cause as that cause which in natural and continuous se- quence, cause, unbroken intervening produces efficient *6 injury and without It which the result would not occurred. further stated In- there than proximate more struction No. 13 included of causation as an proximate element the term em- contributory negligence. No. 3 also Special question bodied the element of proximate cause so that affirmative the answer thereto found plaintiff as “which negligent alleged, [negligence] was a proximate cause The jury’s of the collision”. concern with the factor of the of cause as well as issue ultimate recovery reflected in trial court its to the during deliberations.
Appellant objected to last clear the of instruction on giving chance on ground the there in of support was no evidence doctrine. Appellant also objected, the unsuccessfully, to form special questions on ground the possible inconsistent answers were them, under albeit his challenge was directed toward a situation other than that which actually ensued. now seems to problem stem from the form both of the the instructions and of special ques- tions but apparently appellee made either. Instruc- objection no to tion No. 9 authorized the of last clear chance even though appellee’s contributed collision. Under our decisions we are to criticize compelled disapprove use of the term last contributory phrase quoted instruction No. “. despite any contributory negli- gence of the plaintiff”, as being incorrect statement of law under the cited defect, authorities. for Except gave the instruction directions to the jury for appropriate by way its determination general verdict of the issue of but ultimate for appellee, the instruction was not as use when con- appropriate fined to answering special questions. No. 3 com- Special question pounded the problem by embodying the same question answer both the appellee’s negligence and the element of proximate two, cause. No was made to separate might effort as have been done, and the all required to answer form submitted. intention on the
Despite any to who should must be reversed prevail, judgment because of the clear finding was a appellee’s negligence so and we hold.
A remains as to further disposition case upon
reversal, that should judgment appellant be rendered should new trial own. precedent be ordered? We have no of our The general federal principles respecting (a), rule be, findings of our K. S. A. 60-249 counterpart (a), appear on the essential submitted must by way issues inconsistent; definite, be certain and not be conflicting must whether determining inconsistency findings, there to be cir- findings surrounding are construed in the and in connection cumstances with the instructions and pleadings, submitted; issues if the answers in respect controlling facts inconsistent, should a new not be rendered but trial ordered; should be inconsistency does not findings preclude if, law, as a matter of under no phase *7 and in jury’s findings no could other be contingency judgment entered; facts, the jury finds the controlling and there is no in- contradiction, consistency or the appropriate judgment should be Procedure, 2B Barron & (see Holtzoff, entered Federal Practice and We and 1057). approve adopt these principles. Ed.] [Rules § of judicial duty may Further refinement be found in the following Lines, in A. & G. v. 355, Stevedores Ellerman 369 U. language S. 798, 780, 882, ed. 2d 82 S. Ct. rehearing 7 L. den. 369 U. S. 8 L. ed. 284, 1137: 2d 82 S. Ct. there is a view of the “Where case that makes the answers to
interrogatories consistent, they way. must be resolved that For search for one possible jury’s finding view of the case which will make the inconsistent results (p. 364.) in a collision with Seventh Amendment.” The answers in 3 and No. 3 controversy here are No’s. 5. stated appellee was guilty of negligence which was proximate cause doctrine, collision. related to the last clear chance that term was No. already defined instruction 9. As discussed instruction No. albeit authorized improperly, even though appellee’s negligence contributed to con- So sidered, the answers 5 are and inconsistent. fact is inescapable remains convicted appellee of negli- gence cause of the collision. Hence is barred even was also though negligent and appellant judgment for rendered appellant. must be with is reversed directions to enter judgment
appellant. BY THE COURT.
APPROVED case This dissenting part: J., concurring Fatzer, that “. excellent classical statement example with, innumerable strewn history rocky verdicts is road 7.15, here Procedure, wrecks.’” The wreck (James, p. 294.) Civil § combined resulted special questions, district court’s own with I in the court’s reversal erroneous Instruction No. 9. concur case, directing of this but must dissent from its order respectfully judgment be entered of the appellant. favor and inter are to be construed on Special findings liberally their preted in testimony ascertaining the view Wendler, 212, 218, 453 P. 2d meaning. intended v. (Bott In all 100.) view of the facts and circumstances disclosed record, the district court’s interpretation approval thereon, verdict and the and erroneous Instruc tion No. the case should remanded to district court with to sustain the defendant’s alternate directions motion set aside verdict, and jury’s special the answers to the a new trial. grant J., join Fromme, Fontron foregoing concurring J dissenting opinion.