40 P.2d 472 | Kan. | 1935
The opinion of the court was delivered by
This is an appeal from an order overruling a demurrer.
Plaintiff’s petition alleged that the highway known as 50 N is a part of the state highway system, and that in May and June, 1933,
Although the petition charges that the defendant negligently failed to remove the nails or spikes driven into the highway, and that the automobile tire was punctured by one of such nails or spikes carelessly and negligently left in the highway by the defendant, the real question presented is not one of negligence. If the defendant is liable, it is by virtue of R. S. 1933 Supp. 68-419, which provides that any person who shall, without contributing negligence on his part, sustain damages by reason of any defect in a state highway, not within an incorporated city, may recover such damages from the state of Kansas. The liability is statutory, and does not depend on negligence. (See Payne v. State Highway Comm., 136 Kan. 561, 563, 16 P. 2d 509, and cases cited.)
The demurrer admits the defendant had notice of the existence
After the lower court ruled on the demurrer, this court decided Doherty v. State Highway Comm., 140 Kan. 686, 38 P. 2d 95, on December 8, 1934, in which- it was claimed that small pieces of stone placed on the shoulder of the highway next to the concrete pavement, and allowed to become scattered on the surface of the pavement, constituted defects in the highway, and it was held that:
“One, or a few, small pieces of broken stone, or gravel, on a paved highway, does not render it defective within the meaning of R. S. 1933 Supp. 68-419.” (Syl.)
Essentially, there is no difference between that case and the one now before us. We note plaintiff’s argument that whether the nails and spikes were a defect is a question of fact to be determined by the jury. There may be cases where the facts are disputed from which it is to be determined whether a defect exists (Collins v. State Highway Comm., 134 Kan. 278, 5 P. 2d 1106; Williams v. State Highway Comm., 134 Kan. 810, 8 P. 2d 946), but here there is no dispute. Under the circumstances, whether the alleged defect comes within the purview of the statute is a question of law. (Gorges v. State Highway Comm., 135 Kan. 371, 372, 10 P. 2d 834; Snyder v. State Highway Comm., 139 Kan. 150, 30 P. 2d 102.)
Under Doherty v. State Highway Comm., supra, it must be held the demurrer should have been sustained.
The judgment of the lower court is reversed and the cause remanded with instructions to sustain the demurrer.