205 P.2d 905 | Kan. | 1949
The opinion of the court was delivered by
This was an action for damages for injuries sustained as the result of a collision of automobiles. The defendant’s demurrer to the petition was overruled and he appeals.
The action was commenced February 16, 1948. In his petition plaintiff alleged that U. S. Highway No. 160 extends west from Pittsburg, and that it is paved with black-top to a width of approximately twenty-four feet, and “that on the morning of March 18, 1946, at about the hour of 2:30 o’clock, and while it was dark,” defendant Reed stopped, parked and left his automobile standing on the above highway at a designated place west of Pittsburg, in a negligent manner as later set forth; that plaintiff, a farmer by occupation, was walking along on the shoulder of the highway on the north side of the pavement and had reached a point about twenty feet west of defendant’s automobile, when an automobile driven in a westerly direction by Lewis E. May struck Reed’s automobile with such force that Reed’s automobile was driven and forced in a northwesterly direction into and against plaintiff, causing him severe injuries which need not be detailed, and that all of the injuries were caused by the negligent and careless acts of Reed in the following particulars. We shall detail only the substance of the allegations of these particulars, which is: (1) That Reed parked his automobile on the left or north side of the pavement, the automobile being
Because of contentions later made we note that defendant filed his demurrer on the ground the petition did not .disclose facts sufficient to constitute a cause of action. This demurrer was orally argued and was taken under consideration by the trial court, the parties being given permission to file briefs. Before a ruling was had, plaintiff asked for and received permission to amend by inserting the letters “A. M.” following the words “2:30” in the first quotation -above, by striking the word “five” after the word “twenty” in the second quotation above, and to change a word in the allegation as to injuries sustained. Thereafter defendant filed his motion to strike the amendments, alleging they were made after the statute of limitation had run. He also filed a second demurrer, alleging the petition did not state facts sufficient to constitute a cause of action, and for the further reason the cause of action, stated by reason of the amendments to the original petition, was barred by the statute of limitations. The trial court then heard arguments on the second demurrer and upon consideration overruled it and defendant’s appeal followed.
Appellant first directs our attention to authorities holding that it is negligence as a matter of law for a motorist, to operate his vehicle on the highway at such a speed it cannot be stopped within the distance that objects can be seen ahead of it, and that the
Appellant’s contention that there was no sufficient allegation of his negligence is predicated in part on his contention the petition discloses that from the point where he parked his car to the south side of the traveled portion of the road left a clear space of up to twenty-five feet. What has been said is sufficient on that point. He also contends that the allegation of his violation of G. S. 1945 Supp. 8-586, is defective in that nowhere is there any allegation that no lights were displayed. The contention is without merit. The allegation that appellant parked his automobile “without exhibiting and showing lights” as required by the above statute was sufficient. Without any repetition of allegations, we think it clear that the petition sufficiently alleged that defendant parked his car, in the nighttime, at a place where such parking was not only prohibited by statute, but was inherently dangerous, and that he did nothing to warn other users of the highway of his act. Whether those acts made him guilty of actionable negligence depends on whether they were the proximate or legal cause of plaintiff’s injuries.
In Rowell v. City of Wichita, 162 Kan. 294, 176 P. 2d 590, this court felt impelled to say that there were scores of our own decisions and thousands in the reported cases dealing with the law of negligence and that reference to any considerable number of them was an impossibility. In that case, where many authorities are cited, it was said that the negligence charged must have been the proximate or legal cause of the injury, and that ordinarily the question was for the jury, and that negligence, no matter of what it may consist, cannot create a cause of action unless it is the proximate cause of the injury of which complaint is made; that
In Atherton v. Goodwin, supra, the court again considered the question whether alleged negligence was the proximate or remote cause of the damages alleged to have been sustained. In that case the question was whether negligent driving over a scale, causing it to weigh incorrectly, subjected the driver to damages to the owner for losses sustained by reason of paying for wheat incorrectly weighed on the damaged scale. Reference is made to the opinion for a discussion that whether the negligent action was the proximate cause of plaintiff’s loss was a question for the jury. In that case it was held:
“It is not a necessary element of negligence that one charged with it should have been able to anticipate the precise injury sustained.” (Syl. ¶ 1.)
“The negligence charged must have been the proximate or legal cause of the injury.” (Syl. ¶2.)
“The proximate cause of an injury is that cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury*325 being the natural and probable consequence of the wrongful act.” (Syl. f 3.)
“There is no precise formula for marking the line between proximate and remote consequences following a negligent act, and ordinarily, the questions of negligence, including proximate cause, and whether damages sought could have been foreseen or anticipated by the exercise of ordinary prudence and foresight, are for the jury.” (Syl. ¶[ 4.)
Although our own decisions cover the matter, we note that in Scott v. Simms, (Va.) 51 S. E. 2d 250 (opinion filed January 10, 1949), the supreme court of appeals considered a case quite similar to the one at bar. In effect it was there held that in order to constitute an intervening act relieving a defendant of negligence, such act must so entirely supersede the operation of the defendant’s negligence that it alone, without defendant’s contributing negligence, produced the injury.
In our opinion it is not debatable but that the allegations of the petition charged the appellant with acts which constitute actionable negligence if they are the proximate and legal cause of appellee’s injuries. We are likewise of the opinion that the parking of appellant’s car, under the circumstances, cannot be isolated from later events. The parking of the car did inore than merely furnish a condition. When appellant, in the nighttime, parked his unlighted car insuch manner that, facing in the wrong direction, it obstructed the north half of the highway and part of the south half thereof, he must have anticipated or foreseen that some other person using the highway might collide with it or be injured in person or property by its being left there. It was not necessary that he anticipate or foresee the particular injury sustained by the appellee. Under the circumstances pleaded it was clear that some harm to some person might well result. It ought not be said that the act of May in colliding his car with that of the appellant, in the circumstances alleged in the petition, was an independent and efficient intervening cause of the accident, for had the parked car been absent, May would have gone on down the highway and appellee would not have sustained his injuries. Appellant having negligently created the dangerous condition cannot escape liability for the natural and probable consequence which followed.
We have not overlooked appellant’s reliance on Cruzan v. Grace, 165 Kan. 638, 198 P. 2d 154, and Cotter v. Freeto, 166 Kan. 23, 199 P. 2d 484. It is not necessary that these cases be reviewed for a mere reading of them will disclose there is nothing in either at variance with our conclusion.
Appellant further argues that the petition discloses the appellee was guilty of negligence which contributed to his injuries. The basis for this contention is that appellee alleged that he was walking on the highway fifteen or twenty feet west of appellant’s car, the direction appellee was proceeding not being alleged; that if he was approaching, he should have been aware, and if he had already passed the parked car, he knew of its presence. Appellant filed no motion to ascertain the direction in which appellee was proceeding, and we shall not speculate thereon. Appellant relies on Sweet v. Railroad Co., 65 Kan. 812, 70 Pac. 883, and Cooper v. Southwestern Bell Telephone Co., 159 Kan. 67, 151 P. 2d 692, in support of his contention that one aware of the danger of pursuing a given course and being under no compulsion to encounter the same, but who freely does so, cannot recover for injuries which he may sustain. The rule is sound but it has no-application here. From the allegations of the petition, we cannot say that appellee ever saw the applicant’s unlighted car, but had he seen it, he did not have to anticipate that some third person would drive into it and force it upon him. If there be any proof warranting submission thereof, the jury should determine the question of contributory negligence.
Appellant argues also that the trial court committed error in permitting appellee to amend his petition after the statute of limitations had run. Assuming the question is properly before us, a short answer is that the amendments did not change the cause of action stated in the original petition, nor did they supply any defect in the original petition. As shown by the first quotation heretofore made appellee alleged appellant parked his car on the morning of March 19, at about the hour of 2:30 and while it was dark. An amendment to insert the letters “A. M.” after “2:30” was unnecessary to fix the time, but the fact it was made neither changed the cause of action stated, nor did it prejudice the appellant. The other amendment objected to was to change “25” to “20” in the second allegation quoted above. The only purpose was to make the figure agree with that set forth in the statute mentioned. That amendment neither changed the cause of action nor prejudiced the appellant.
The trial court did not err in ruling on the demurrer and the ruling is affirmed.