Garrison v. Marlatt , 224 Kan. 390 ( 1978 )

Miller, J.,

dissenting: The defendant driver admitted that he had consumed “two or three beers” before the collision occurred. He had alcohol on his breath. He took a bottle from inside his car and secreted it in the trunk shortly after the collision. His only excuse for rear ending the plaintiff vehicle — which was moving in excess of fifty miles an hour at the time — was that he must have fallen asleep.

I think the trial court was justified in giving the instruction on driving while under the influence of alcohol.

There is really no bona fide dispute as to causation. I would affirm as to liability and remand for trial on the issue of damages alone.

I respectfully dissent.

McFarland, J., joins in the foregoing dissent.