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KUHL v. ATCHISON2/28/1992
The opinion of the court was delivered by
This is a personal injury action arising out of a motor vehicle accident. The plaintiffs Norman Kuhl and Billy D. Van Aken were employees of the defendant, Atchison, Topeka & Santa Fe Railway Company (ATSF). Defendant Willa Wright was employed at the Oak Tree Inn, a motel owned by defendant Green Country Inn, and she was driving Kuhl and Van Aken to work when the motel's van was struck from behind by a car driven by defendant Juan Reyes and owned by defendant Curtis Canseco. The jury attributed 68% of the fault to ATSF, Wright, and Green Country Inn collectively, 22% to Reyes, and 10% to Canseco. The jury awarded the medical expenses incurred by each plaintiff, and the awards for pain, disability, and economic loss were identical. ATSF appealed the jury's awards of identical damages to the plaintiffs. Green Country Inn and Wright appealed, asserting three issues: the jury instructions, the award of damages, and the district court's failure to direct a verdict in their favor. The Court of Appeals, in an unpublished opinion filed August 23, 1991, found no error as to the instructions, but reversed the jury's award of damages and remanded the case for a new trial on that issue. Wright and Green Country Inn sought review of the Court of Appeals' decision as to the jury instructions,
and plaintiffs sought review as to the reversal of the jury's award of damages. We granted both petitions for review.
Wright, who was employed at the Oak Tree Inn to drive railroad employees who stayed at the motel, drove Kuhl and Van Aken in a van from the Oak Tree Inn to the ATSF yards. When she stopped to make a left turn into the yards, a car driven by Reyes struck the rear of the van.
Those witnesses who were asked how long the van was stopped waiting to turn left gave widely varying answers. Jennifer Fountain, a teenaged pedestrian who witnessed the accident, estimated that the van was stopped for three seconds before it was struck. Wright said she did not know how long she was stopped before the accident occurred and could not estimate the time. She did remember, however, that several oncoming cars passed her before the van was hit. At trial Van Aken testified that he did not know exactly how long the van was stopped, but that the stop and the screeching of tires and the impact all occurred in a matter of seconds. In his deposition, Van Aken said that the van was stopped for 15 seconds or less. He remembered that there were several oncoming cars. Kuhl gave a statement to an insurance adjuster in which he said that the van was stopped between 30 and 45 seconds, and in his deposition he said approximately 30 seconds. At trial he testified that he had never been able to do more than roughly estimate how long they were stopped because he was not paying attention and "how seconds tick off I have no idea."
The evidence is sharply conflicting on the question of how quickly Wright stopped the van. Jennifer Fountain used the phrase, "slammed on her brakes." Wright testified that she stopped the van in a normal fashion. Reyes several times said that Wright "slammed on her brakes," but added that the van did not slide. He also testified, however, that she did not slam on her brakes. He testified that her stop was "sudden," but not so sudden as to cause the front end of the van to dip. Mark Walker, a passenger in the car driven by Reyes, described the stopping of the van as "real abrupt" and "real sudden."
With regard to whether Wright signaled her intention to turn left, Wright is the only person who testified that she signaled before the van was hit. She said that the blinker was on before
she came
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