The opinion of the court was delivered by
This was an action to recover for personal injuries and property damage resulting from an automobile collision. The defendants demurred to the petition, the demurrer was overruled, and they appeal. Appellants contend, first, that the alleged acts of the defendants, even if construed to be negligent, were not the proximate cause of the accident; and second, that the allegations of the petition show on their face that the plaintiff was guilty of contributory negligence barring recovery.
Omitting formal averments, the allegations of the petition here pertinent may be summarized as follows: Prior thereto and on the 4th day of July, 1946, the defendants F. H. Freetó and F. H. Freeto Construction Company, Inc., were engaged, pursuant to a contract entered into between them and the Kansas State Highway Commission, in repairing, grading and constructing a four and a half mile
The defendants filed a motion to strike certain portions of the petition and to make certain portions definite and certain. Insofar as the motion sought to strike portions of the petition, it is not here argued by appellants and we pass it. As to making the petition definite and certain, the motion sought to require the plaintiff to state where upon the highway the ridge of gravel, stone and debris was two and a half feet high and four feet wide and where on the highway the north edge of the ridge was at the approximate center and where its north edge was about four feet south of the center of the highway; to set out where the traveled portion of the highway was narrow, and where it was eleven feet wide and where it was fifteen feet wide; to set out where the surface of the highway was coated with about four inches of fine dust; to set out at what speed plaintiff was traveling after he turned west upon the highway and to set out at what speed the approaching car was traveling; to set out the
The motion having been overruled, the defendants demurred to the petition; the demurrer- was overruled, and this appeal followed.
At the threshold of any case like this stands the familiar rule that in testing the sufficiency of a pleading as against demurrer, its allegations are to be liberally construed in favor of the pleader and all reasonable inferences to be drawn therefrom indulged in his favor (Rowell v. City of Wichita, 162 Kan. 294, 300, 176 P. 2d 590; Horton v. Atchison, T. & S. F. Rly. Co., 161 Kan. 403, 406, 168 P. 2d 928; Hoffman v. Cudahy Packing Co., 161 Kan. 345, 347, 167 P. 2d 613). In connection with this rule, there is the further rule that if a motion to make definite and certain is successfully resisted, the allegations of a pleading when subsequently tested by a .demurrer are to be strictly construed as to matters covered by the motion (State Highway Comm. v. American Mut. Liability Ins. Co., 146 Kan. 187, syl. ¶ 2, 70 P. 2d 20, and cases listed on page 192; Bell v. Bank of Whitewater, 146 Kan. 901, 904, 73 P. 2d 1059).
The contentions of appellants may fairly be summarized as follows: First, under the facts as alleged, it was the collision which was the direct and proximate cause of plaintiff’s injuries, and the alleged acts of negligence on the part of the defendants furnished at the most merely one of the existing conditions calling for greater caution and slower speed on the part of both of the drivers involved in the collision. The alleged acts of negligence of the defendants were not concurrent with subsequent and related incidents or causes to the extent that it may be said that together they constituted the proximate cause of the accident; at most they were a remote cause, and therefore did not constitute actionable negligence. Second, the plaintiff, drove upon the highway at 7:30 in the evening on July 4 when it was still daylight, and drove one-half mile over the highway when its condition was obvious to him and when by the exercise of reasonable care he could not help knowing that the highway was “impassable, dangerous to travel, unsafe and hazardous for vehicular travel, and too narrow for approaching vehicles to pass.” He must have seen the ridge of gravel, stone and debris lying in or near the center of the highway and running in,a tortuous manner as alleged, making the traveled portion of the highway vary in width from eleven to fifteen feet. All the dangerous conditions of which complaint is made in the petition constituted a sufficient warning to
It would unduly extend this opinion and not be helpful to discuss a great number of our former cases involving situations more or less similar to this one. The difficulty is not so much as to the abstract principles or rules laid down in the cases, but in appraising the facts of a particular case and in determining what rules are applicable. It will be sufficient here to limit our consideration in large part to cases upon which the parties principally rely.
Appellants stress Lambel v. City of Florence, 115 Kan. 111, 222 Pac. 64; Railway Co. v. Columbia, 65 Kan. 390, 69 Pac. 338, 58 L. R. A. 399; Petty v. City of Cimarron, 116 Kan. 141, 225 Pac. 1033; Whitcomb v. Atchison, T. & S. F. Rly. Co., 128 Kan. 749, 280 Pac. 900; Smith v. Mead Construction Co., 129 Kan. 229, 282 Pac. 708; and Mosier v. State Highway Comm., 136 Kan. 468, 16 P. 2d 477.
In Lambel v. City of Florence, supra, the plaintiff who was injured in a collision at a street intersection sued the city for damages on the ground that it had negligently permitted the builders of a hotel to pile building materials on a corner lot near the intersection; that the materials encroached into the street and were piled so high as to obstruct the vision for persons who were driving south on one street or driving east on the other street. The plaintiff was driving south and after she had passed beyond the obstruction her car was struck by another car being driven east on the south side of the intersection. It was held that the negligence of the city in permitting obstructions to view, to remain where they were was not the proximate cause of the plaintiff’s injuries but only furnished one of the conditions and that the proximate cause was the collision and the incidents immediately connected therewith. -In the opinion it was said, in effect, that while the question of whether obstruction of the view constitutes the proximate cause of the injuries in such a ease is ordinarily a jury question, it becomes a question of law for the court if the facts alleged show that there were two distinct and successive causes unrelated in their operation, one of which was a remote and the other the proximate cause of the injury. It was held that the obstructions complained of were not the direct and
Railway Co. v. Columbia, supra, was an action to recover damages for the death of a locomotive fireman, his death having resulted from derailment of the engine when it struck some heavy grain doors which had been blown off and had fallen upon the track. The facts need not be recited further. The case is cited in support of the general rule that where two distinct and successive causes wholly unrelated in operation contribute to an accident, one of the causes is the proximate and the other the remote cause, and that where the facts show beyond question that there were two such distinct, successive and unrelated causes, the question of which one is the remote and which one the proximate cause is one of law for the court.
In Petty v. City of Cimarron, supra, the city had stretched a rope across a street to stop traffic and while a woman was attempting to cross a street near the rope, an automobile struck the rope causing it to strike her, knock her down and injure her. She brought action to recover damages from the city. Recovery was denied on the ground that the rope was a warning to persons not to drive or to walk into it; that the rope may have produced the condition, but it was the automobile which caused the injury and was its proximate cause.
In Whitcomb v. Atchison, T. & S. F. Rly. Co., supra, the plaintiff, who was riding as a guest in an automobile, was injured when the car was driven into a ditch near the approach to a crossing and on the railroad right of way. In the petition charging negligence on the part of the driver of the car, it was also alleged that the railway company was negligent in failing to maintain a safe crossing over the railroad track, that the approach to the crossing was not of the width or grade required by the statute, and that the ditch or deep hole into which the car was driven was maintained by the company near the approach on its right of way without any guard rails, fence dr warning. Passing by the question of whether the statute involved was designed to protect a guest from the negligence of his host, the court observed that “while a breach of statutory
In Smith v. Mead Construction Co., supra, the defendants were contractors engaged in road work and the building of culverts on an improved highway, and in the course thereof had made an excavation sixteen feet wide and several feet deep. A plow used in the work was left on the highway a few feet from the opening and about fifty feet from the opening was a pile of sand near which a cement mixer had been left. A car driven by plaintiff’s son drove onto the highway about 11:30 at night, having driven past a detour sign, ran into some obstruction in the road, onto the sandpile and the cement mixer, and landed upside down in the excavation, killing the son. Recovery was denied. The opinion dealt largely with the question whether the facts showed two distinct and successive causes, unrelated in their operation, and invoked the rule that if there are two distinct, successive and unrelated causes, the law regards one as the proximate and the other as the remote cause. The findings of the jury most favorable to the plaintiff were that the defendants were negligent in not fully complying with the statute in the matter of maintaining red lights. The court said: “There was no concurrent wrongdoing in this case. If both parties were negligent, as the jury found, the negligence of the one was successive and unrelated to that of the other. It is clear, not only from the findings of the jury but from the record of the case as a whole, that there would have been no injury to plaintiff’s car had it not been for the negligence of its driver, and this must be held to be the active, proximate cause of the injury.”
In Mosier v. State Highway Comm., supra, the plaintiff brought action to recover for injuries sustained when he drove his car into an unfinished culvert on a highway under construction. Judgment for the plaintiff in the trial court was reversed here, this court holding that the facts disclosed that the plaintiff was guilty of contributory negligence as a matter of law. When the plaintiff approached a turn in the old road leading onto the part under repair
“We rest our conclusion of his contributory negligence mainly on the reckless conduct of the plaintiff in driving over the 360 feet at the east end of the unfinished road. Even if the defendants were negligent in not placing signs there, the plaintiff was grossly negligent in driving over that part of the road at the speed mentioned. The piles of dirt here and there on the unfinished grade were sufficient warning to arrest the attention of any reasonably prudent person that the road was not intended for public travel and that he was going at his own risk. . . . The piles of dirt over which plaintiff drove were an effective warning to him that he had reached the end of the road and that he should take precautions for his own safety, but instead of doing so he recklessly drove on and the accident resulted. If he had taken reasonable precautions for his own safety the accident would have been averted. Upon his own testimony and evidence not in dispute, the plaintiff was guilty of negligence as a matter of law.” (p. 471.)
Appellee relies principally upon four cases, Lincoln Township v. Koenig, 10 Kan. App. 504; Neiswender v. Shawnee County Comm’rs, 151 Kan. 574, 101 P. 2d 226; Brock v. State Highway Comm., 157 Kan. 252, 139 P. 2d 811; and Thummel v. State Highway Comm., 160 Kan. 532, 164 P. 2d 72.
In Lincoln Township v. Koenig, supra, we hark back to an earlier day. The case involved personal injuries resulting from a collision between two wagons which were going in the same direction. The alleged negligence of the defendant township consisted in permitting the roadway where the injury occurred, to remain in an unsafe condition in that it was only 12 feet wide and was between ditches from three to four feet wide and from one and one-half to two and one-half feet deep. Plaintiff’s wagon was nearing the narrowest part of the roadway when the defendant’s team became frightened, got out of control, dashed down the hill, and the driver tried to pass plaintiff’s wagon but couldn’t do so on account of the ditch, and the col
In Neiswender v. Shawnee County Comm’rs, supra, plaintiff’s husband was drowned when his car broke through the railing of a county bridge and he fell into the river, after being sideswiped by a car on the bridge. In that case there was much evidence that the railing was in a wholly unsafe condition and that its condition was known to the defendant. It was held that the condition of the railing was such that accidents caused by its condition should reasonably have been anticipated by those responsible for maintaining the bridge and that the collision and the condition of the railing were both directly related in causing the accident. The trial court had granted a new trial having concluded that an instruction given was erroneous in that it failed to recognize that two or more events may combine to produce a result and together constitute the proximate cause. It may be noted that after the two cars sideswiped each other, plaintiff’s car ran into the rotten and frail railing which gave way, the collapse of which thus became the immediate cause of the accident. In the instant case, the alleged condition of the highway was something preceding the collision, and the collision was thus the immediate occasion of plaintiff’s injury. But without laboring that distinction, the cases differ very materially in that in the Neiswender case there was nothing whatever to warn the plaintiff of the defective railing when he drove upon the bridge. He- had a right to assume that the railings were substantially built for the purpose intended, and he had no reason to think otherwise. That is not the situation here. Before the accident took place the plaintiff had driven for one-half mile over a road the condition of which was obvious and which he alleges was impassable, dangerous and hazardous.
Brock v. State Highway Comm., supra, was a case in some respects much like the one before us. Plaintiffs were injured when their car collided head on with another car at a point near the top of a hill. Action was against the highway commission and the appeal was from an order overruling defendant’s demurrer to the peti
Thummel v. State Highway Comm., supra, involved a bad high
We find nothing in any of the above cases inconsistent with the
The judgment is reversed with direction to sustain defendants’ demurrer to the petition.