185 P.2d 139 | Kan. | 1947
The opinion of the court was delivered by
This appeal is from a ruling of the district court sustaining a demurrer to a second cause of action set forth in a petition in which cause the plaintiff alleged gross negligence, reckless conduct and wantonness on the part of the defendant. The action was brought to recover damages resulting from .an automobile collision occurring on a public highway.
The appeal involves the construction which should be given to the plaintiff’s amended petition after the plaintiff had successfully
After reference to the foregoing general facts, the second cause of action in plaintiff’s amended petition alleges, in substance, that the defendant was guilty of “reckless, gross and wanton negligence or conduct” in one or more, or a combination of one or more, of the following particulars: (a) In operating the defendant’s automobile at a speed of approximately eighty miles an hour when he knew, or should have known, of the existence of the extensively traveled county road; of the probability of traffic being thereon; knowing that highway 81 was intersected by the county road near the top of a hill or rise and that his vision would be restricted by the- same, and knowing he could not stop at the speed he was traveling in time to avoid colliding with a vehicle which might be in the intersection; (6) in failing to maintain a lookout commensurate with the circumstances, the type of lookout being maintained by the defendant being within his peculiar and personal knowledge; (c) in driving said automobile as aforesaid, knowing that the speed was
The allegations in plaintiff’s second cause of action are much more extensive than the summary thereof indicates but each paragraph contains a repetition of nearly all of thé circumstances and in addition allegations that the defendant knew, or should have known, of the existence thereof. The foregoing, however, in substance, sets forth the essential facts which-the plaintiff relies upon in combination as alleging “reckless, gross and wanton negligence or conduct.” The remainder of the petition consists of allegations pertaining to the injuries and damages sustained by the plaintiff.
The defendant’s motion to make the second cause of action more definite and certain and to strike certain allegations therefrom need not be set forth in detail herein. The motion sought to require the plaintiff to allege with more particularity what means of knowledge the defendant had or should have had concerning the existence of the alleged extensively-traveled intersection and whether the county road at the point of collision was a joining road or an intersecting road. The motion sought to require the plaintiff to allege the facts and circumstances which caused the defendant to' have knowledge of the conditions which the plaintiff alleged were known or should have been known to the defendant. The motion contains six separate requests on the part of the defendant seeking to have the plaintiff allege the facts which gave the defendant knowledge of the various circumstances or the means of knowledge which the defendant had of the probability of a collision occurring at the intersection or junction of the two highways. In connection with the
1. The plaintiff uses the phrase, “reckless, gross and wanton negligence or conduct.” What is “recklessness”? Our uniform act regulating traffic on a highway defines “reckless driving” for the purpose of the act as follows: “Any person who drives any vehicle in such a manner as to indicate either a willful or a wanton disregard for the safety of persons or property is guilty of reckless driving.” (G. S. 1945 Supp., 8-531.) Perhaps the statutory definition is not controlling in the present circumstances because of the criminal nature of the statute. But the same elements are essential when the word “reckless” is relied upon for the purpose of the plaintiff’s second cause of action. In K. P. Rly. Co. v. Whipple, 39 Kan. 531, 18 Pac. 730, the term is defined at page 542 as follows:
“Recklessness ‘is an indifference whether wrong is' done or not — an indifference to the rights of others.’ ”
See, also, Stout v. Gallemore, 138 Kan. 385, 391, 26 P. 2d 573. Frequently the word “reckless” appears to be used synonymously with the word "wanton.” (See Railway Co. v. Baker, 79 Kan. 183, 98 Pac. 804; and Cohee v. Hutson, 143 Kan. 784, 57 P. 2d 35.) The word “recklessness” has been given various shades of meaning but when it is used for the possible purpose of circumventing the defense of contributory negligence, “recklessness” should be regarded as synonymous with “wantonness.” If it is less than wantonness it is in the nature of negligence and contributory negligence is a defense to it in this state.
2. What is the significance of the gross negligence allegation in the present case? Putting the word “gross” before the word “negligence” does not strengthen the force of the specific facts which may be alleged. “Gross negligence” is still “negligence.” ' If the term is used accurately, “gross negligence” as distinguished from ordinary or slight negligence no longer has any legal consequence insofar as the defense of contributory negligence is concerned in automobile
3. If the defendant were properly charged with wantonnéss in the plaintiff’s second cause of action, any possible contributory negligence on the part of the plaintiff possibly would not be a defense thereto. (Frazier v. Cities Service Oil Co., supra.) “Wanton conduct” has been defined by this court so many times that a repetition of definitions seems wholly unnecessary. However, for the purpose’ of developing the consideration of the question presented in the present case, a few definitions may be given.
One of the latest definitions by this court will be found in the fifth paragraph of the syllabus to the opinion in Frazier v. Cities Service Oil Co., supra. It reads:
“To constitute wantonness, the acts complained of must show not simply lack of due care, but that the actor must be deemed to have realized the imminence of injury to others from his acts and to have refrained from talcing steps to prevent the injury because indifferent to whether it occurred or not. If the actor has reason to believe his act may injure another, and does it being indifferent to whether it does or not, he is guilty of wanton conduct.” (Emphasis supplied.)
In Stout v. Gallemore, supra, this court, in defining “wantonness,” quoted the following from 40 Cyc. 294:
“ . . . the conscious failure of one charged with a duty to exercise due care and diligence to prevent an injury after the discovery of the peril, or under'circumstances where he is charged with a knowledge of such peril, and being conscious of the inevitable or. probable results of such failure.” (p. 390.)
From Aduddell v. Brighton, 141 Kan. 617, 42 P. 2d 555, the following is quoted:
“We see from these authorities that this court has consistently held that*637 for the conduct of a defendant to constitute a basis for a cause of action under the statute [G. S. 1935, 8-122b] it must show such a reckless disregard of consequences as to evinoe a willingness that some harmful result will flow therefrom.
“In considering the question of whether the conduct described in the petition evinces such a willingness, we must consider it in the light of what is the general practice of drivers of automobiles. When that criterion is applied, we have no difficulty in concluding that the conduct as described did not show any such attitude.” (p. 619.)
In Anderson v. Anderson, 142 Kan. 463, 50 P. 2d 995, at page 466 the opinion reads as follows:
“Our task is to ascertain what was in the mind of the driver. Wanton negligence requires as an element a mental attitude on the part of defendant of a will to injure, or such indifference to consequences, with realization that catastrophe is imminent, as to amount to willingness to injure. This distinguishes such conduct from negligence, which is merely failure to exercise due care.”
(See, also, Leabo v. Willett, 162 Kan. 236, 175 P. 2d 109, and citations therein.)
4. The question, therefore, narrows itself to consideration of whether the amended petition alleges facts, as distinguished from descriptive terms, from which the court can conclude that the defendant was charged with being indifferent, to the probable detrimental consequences of his conduct. It should be noted that there is no specific allegation in the petition which accuses the defendant of being indifferent to what might happen after the defendant had knowledge of any particular circumstances and was conscious therefrom of the possible or probable peril. The nearest approach to any such allegation is that the 'defendant drove “approximately eighty (80) miles per hour, in the night time, and on a major highway, with utter disregard of the rights of others using said highway, . . .” But there is no allegation to the effect that the defendant saw the plaintiff’s car in the intersection or approaching the intersection and therefore was guilty of a conscious failure to observe due care. To hold that a motorist who drives at 80 miles an hour, in the nighttime, with disregard of the rights of others who might be using the highway even though the motorist did know that others using said highway might make a left turn in front of the approaching oar, was guilty of wantonness would require us to disregard the element of wantonness which requires that one ordinarily cannot be held guilty of wanton conduct if the
Consideration will be given to the additional circumstances, The petition alleges that the defendant was ‘driving an automobile “in a defective mechanical condition and having defective lights.” In Aduddell v. Brighton, supra, it was alleged that the defendant was
In Murrell v. Janders, 141 Kan. 906, 44 P. 2d 218, the petition alleged that the defendant was familiar with the highway, was driving sixty to seventy miles an hour, on a paved state highway, when three cars were approaching; when defendant was about 600 feet from the middle car it turned to the left and started to cross the pavement, then turned back and when .it was not entirely across the center line of the highway the defendant’s car struck it even though there was adequate room on defendant’s side of the pavement for him to pass the other car without striking it. It was alleged that because of his speed or inattention he failed to give any attention or make any effort to control his car. The opinion reads:
“. . . This charges nothing more than lack of .due care, which is negligence.” (p. 908.)
From the foregoing it will be seen that many of the elements relied on by the plaintiff as showing wantonness on the part of the defendant have been considered by the court as insufficient indications of wanton conduct. Other alleged circumstances also have received consideration by the court with like consequences. The plaintiff alleges that the fact the defendant was driving when his car was overcrowded indicates wantonness.' The court is of the opinion that the fact there were four people in the front seat of the defendant’s car does not make it obvious that he was indifferent to consequences. In such circumstances the defendant’s “natural concern for his own safety” and for the safety of the occupants of his car would preclude any assumption that the defendant was' driving with reckless unconcern for the probable results of his conduct. (Cohee v. Hutson, supra, and Ewing v. Edwards, 140 Kan. 325, 36 P. 2d 1021.)
The plaintiff’s allegations relative to the rise or hill in the highway. diminish in significance as a result of the defendant’s motion to make such allegations definite and certain and the adverse ruling thereon. As hereinbefore set forth, the defendant’s motion not only sought to require the plaintiff to allege what means of knowledge the defendant had of the probability of a vehicle crossing the highway on the intersection at the top of the hill, but in addition the motion sought to have the plaintiff state the extent or approximate distance the plaintiff claimed the defendant’s vision was restricted or shortened by reason of the hill or rise. Thus, it will be noted that the plaintiff successfully resisted giving the defendant any information to the effect that the defendant saw or could have seen o.r could not have seen the plaintiff’s car about to cross in front of the defendant’s car in time for the defendant to have avoided the accident. The plaintiff’s petition does not allege that the hill or rise restricted the defendant’s vision to such an extent that the defendant could not, with the exercise of ordinary care, have seen the car crossing the intersection in time to have avoided the accident under the existing circumstances and that the defendant was aware of such fact. As a result of the successful resistance of the motion, the allegations in plaintiff’s petition must be strictly construed when subsequently tested by a demurrer. (Frogge v. Kansas City Public Service Co., 159 Kan. 687, 157 P. 2d 237, and Frazier v. Cities Service Oil Co., supra.)
When strictly construed, plaintiff’s allegations fail to set forth
The judgment of the district court is affirmed.