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STERBA v. JAY8/7/1991
The opinion of the court was delivered by
This is a wrongful death action arising out of a December 1987 motor vehicle/pedestrian accident in which plaintiff Lois E. Sterba's son, Scott A. Beecham, was struck and killed by a pickup driven by defendant Tommy L. Jay, an employee of defendant W.B. Carter Construction Company (Carter). Beecham was employed as a street maintenance worker for the City of Wichita. On December 22, 1987, Beecham and a fellow worker, Michael Keeling, were "cold patching" potholes on K-42 highway. Keeling was driving a city dump truck, using six yellow flashers, two located on top of the truck and four on the rear of the truck, as warning devices while they were cold patching. The dump truck had just stopped in the curb lane of the four-lane highway a few feet in front of the area to be cold patched. Beecham exited the right side of the truck and proceeded to the back of the truck to begin cold patching. He was wearing an orange caution jacket and a green helmet. Where the cold patching was to be done, K-42 is a divided four-lane highway with a 50 mph speed limit. Approximately 8 to 20 seconds later
the pickup Jay was driving for Carter struck and killed Beecham and then collided with the city dump truck.
An investigating officer testified that there were 14 feet of ghost skid marks left by the pickup prior to striking Beecham, who was standing approximately 18 feet behind and facing the dump truck. Ghost skid marks occur when brakes stop a tire, causing the tire to clear debris on the road surface prior to the time when the tire heats sufficiently to lay down skid marks. The impact of the pickup colliding with the dump truck moved the dump truck, which was not in gear, approximately 20 feet forward. Keeling told the investigating officers there was no other vehicle in the area when Beecham was struck by the pickup.
At the hospital, Jay told the investigating officers he was traveling about 35 to 40 mph when the dump truck stopped in front of him. Jay later told the officers that another truck stopped in front of him, causing him to move into the curb lane where he hit the dump truck.
The case was tried twice. At the conclusion of the evidence at the first trial, Carter requested an instruction on K.S.A. 8-1531(a), and Sterba requested an instruction based on K.S.A. 8-1531(a) and (b). The trial judge refused to give either of the requested instructions. The jury compared the fault of the decedent, the City of Wichita, and Jay. The jury attributed 5% fault to Beecham, 30% fault to the City of Wichita, and 65% fault to defendant Jay and awarded damages totalling $52,781.81.
Sterba filed a motion for a new trial, claiming the trial court erred (1) in refusing to instruct the jury on K.S.A. 8-1531(a) and (b) and (2) in allowing the jury to compare Beecham's negligence. The trial court ruled (1) it had erred by failing to instruct the jury on K.S.A. 8-1531(b) and (2) the jury should not have compared decedent's fault because there was no evidence of negligence by the decedent. It granted plaintiff's motion for new trial but limited the new trial to the issue of liability.
Most of the evidence introduced during the second trial was similar to that of the first trial. Robert L. Loveland, street maintenance supervisor for the City of Wichita, testified that the 1985 Manual on Uniform Traffic Control Devices (MUTCD) was in effect at the time of the accident. He stated Part VI of the MUTCD, entitled "Work Zone Traffic Control Standards and
Guidelines," was used by the street maintenance department for safety guidelines. Loveland said that the guidelines were used on any job performed by s
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