*1 submission, oí the trial tbe court bad the to consider all of the evidence its most favorable plaintiff. above, together
Based the reason when taken with the fact jury the verdict of the limited the recovery to the amount en- insurance, titled to recover account we conclude that Judgment not reversible error to submit the issue. affirmed. All concur. Appedlant.
Lawrence Gerard Howard, Respondent, v. Knutson, (2d) W. 158. S. City Appeals. 13,
Kansas Court November 1934.
Randolph Randolph respondent. & for
Brown, Douglas appellant. & Brown for
CAMPBELL, brought C. Plaintiff for the this suit to recover death by alleged negligence of his wife caused the defendant. judgment The cause was tried. Plaintiff had a verdict and $2000. sum of has appealed. The defendant May 30, 1932, westward
Plaintiff, drove his automobile ac- Highway city Brookfield; Missouri, on wife, Iiis city St. Missouri. Joseph, which near the *2 cident was defendant in automobile. The grandson him the son and rode with the state engaged under contract with was at the time in constructing bridge a where in highway commission of Missouri highway A from the Highway drainage ditch. detour crossed a bridge point west a point a east of the to proper extended from highway point a or at it. a barricade across the of There was his auto- the detour. The drove feet west of the east end of and ran the south side end the detour it off past mobile the east of and high barricade, embankment highway, the down a of (1) that negligence charged was his wife. The the death of caused warning give timely of travellers approaching failed defendant to (2) lights detour; or failed to have presence of the construction a either the detour barricade; to have watchman at failed (3) travelling including plaintiff, public, of barricade to warn the or dangerous condition of work detour “or of said construction or though thereat, highway place at or of said detour .said said stormy cloudy day, and evening rainy, dark, and late in the of a large constantly arising foggy and mist were amounts of steam strong highway detour;” (4) “a failed to construct and said and highway ex- guard railing” along of the or the sides substantial tending (5) negligently caused from the detour to the quantities foreign permitted large dirt and materials earth, and upon highway placed and to and remain said to be collect highway the'junction and detour. The answer was and near of said negligence. general plea contributory Plaintiff a denial and a arrived at the about five to five- testified that he accident evening; rainy, thirty day pavement in the that was o’clock slick; muddy approached and that was as he the de- the detour twenty-five going twenty hour; was miles an that there tour he pavement;” that the barricade “fog and steam from was was twenty-five thirty west of detour. or feet sign there
“I seen a of the detour on barricade for and I went I to the south and to turn off there and missed the turned off get way pavement in and did not onto the turn some or other —de- ” tour. > in direct did He further testified examination that he not see warning .any signs detour, that there was a or and that along highway there was fence either side of the no between barricade and the detour.
“Q. you sign you spoke When first saw that of on the” you my A. Put barricade, what did do? brakes and tried to stop and turn.” following:
In this cross-examination is the “Q. sign road, you saw this the north side of the So detour got right ? I fifty feet east the detour A. When at it. about “Q. fifty feet A. Somewhere near It detour? fifty something I like that. that. don’t know whether it feet or “Q. sign A. That was a little on the north side the road?
Yes, sir.
“Q. Yes, You did see it? A. sir. ... “Q. you were a mistaken, you, You weren’t when testified while ago. response questions Randolph you Mr. asked you, you you any reply sign except not to one asked said did see forgot big barricade, you you just one on were mistaken and sign A. I you say anything about this small saw? detour didn’t — that, I said about “Q. (Interrupting) you say ago you Didn’t not while did see any sign except big at that A. I time one on the barricade? any up didn’t see side. road
“Q. just Now, you got through saying you up saw one about fifty Fifty feet east of A. the detour? feet east of detour is right at the detour.
“Q. along right east ? sir, That road of the detour A. No, at the detour.
“Q. sign big right You saw one on the A barricade? A. little sign on the barricade.
“Q. sign What? A. There is little there on barricade, yes, gates. on the
“Q. That barricade was some distance west of the west side of Yes, A. detour, wasn’t it? sir. “Q. you sign And another back fifty saw here about feet on the- I fifty north side of the road? A. know it feet; don’t as was somewhere near there. “Q. is east of the detour That the side of the road isn’t A. detour; right it? That is not east of the it is I detour, you. tell
“Q. you ago say Didn’t a minute it fifty was feet east? A. Fifty being feet; the detour. that is like at
“Q. asking you I am if fifty it was feet east of the detour? A.. got right now. You it there
“Q. fifty It was feet east A. detour? itNo, fifty is not east feet detour. ‘‘Q. Right far it ? A. How the detour was at detour,. I said.
“Q. say fifty it right You now was not feet east but at the de- Yes, sir, A. tour? it was.
“Q. your deposition In A. (Interrupting) here— You will there, in it too. find feet, fifty
“Q. yon it was your deposition page 6, In when said near it—somewheres A. I you mistaken? said were fifty feet. “Q. I see. you A. I but can’t Can read? can.read ‘Q. “Q. just question correct: you will answer this this If —is sign (reading you this was far east of the detour Could estimate how , if fifty feet, suppose I it over deposition)? A. don’t was ‘Q. A. Is that correct? Fifty Yes, feet? sir.’
it was that far.’ Yes, A. sir. testimony that that detour
“Q. drop can with the So then we it near detour? A. Somewhere sign fifty feet was about . . . feet east. you this “Q. you travelling first saw speed when And the were thirty you could not? you stop twenty-five feet, sign, could about Something that. A. like Yes, “Q. before, it not? A. you estimated That was what sir, I think so. you ‘1Q. rolled off the yet you
. went farther than that before And yes, I slop did, in that mud sir.” detour, you Yes, not? A. did' requested court to the defendant At the close of the evidence defendant was jury plaintiff had failed to show that tell the be in favor of the verdict should guilty any negligence, and that assigns plaintiff The instruction was refused and the defendant. evi- ruling. ruling accept In we will error to dence of as true. twenty twenty-five miles going testified that
Plaintiff
hour;
sign fifty feet east of the detour and
that he saw a detour
per
sign
that there was no
or watchman
another
highway between
nor fence at the side of the
the de
at the detour
*4
pavement
the
there was mud on
and the
tour
that
fog
his vision. The de
and that
and steam obstructed
the detour
tending to
that
that there was no evidence
show
fendant contends
lights”
duty
fence,
“a
a
to have
or to
watchman,
he was under
part
highway
that
of the
pavement;
from the
that
remove the mud
barricade
under the control
the
extending east of the
of
state
authority
highway
that the defendant had no
over
commission and
authority
highway
or
If the
had no control
over the
it.
defendant
negligence in
he cannot be convicted of
barricade then
east of the
authority
attempt
exercise
over it for the
that
failing
to
reason
to
duty to
v. Glueck Box
276
Co.,
under
do so.
not
[Zitmann
State,
12,
42,
this
Article
Chapter
c.
The law of
23,
S. W.
l.
25.]
clearly
legislative
discloses
intent
1929,
to vest
Revised Statutes
dominion and control of
con
highway commission
the
in the state
highways.
In the
of state
exercise of
and maintenance
struction
danger
detours,
signals
may establish
the commission
power
its
er.ect
highway.
warnings along
provides
Section 8107 of the act
the
or
“guide
signals
person
maintains
boards or
any
who erects or
that
any
highway
the written
right
way
per-
of
of
state
without
on the
guilty
.
.
.
shall
deemed
the commission
be
a mis-
mission of
of
Upon
highway
us
part
record before
that
of the
demeanor.”
the
dominion
under-the control and
of
commis-
of the barricade was
duty
was-not under
to care
it. He there-
sion
defendant
for
and the
duty owing
plaintiff
fail
a
or others.
perform
fore did not
to
to
light
to have a watchman
The defendant had
and a
May
on
30 was
than
barricade. Sundown
more
two hours subse-
quent
fog
that
steam were
the accident. There was no evidence
and
to
present
In
prior
plaintiff
to the time
arrived at the detour.
that
showing
notice,
a
absence
that defendant had
actual or construc-
tive,
alleged
by fog
of the
condition caused
and steam he
be
cannot
negligence
adjudged guilty
failing
in
watchman
to have a
lights
11,
the barricade.
v. K. C.
Mo.
Terminal,
[Williams
954;
278 Mo.
Louis,
213,
S. W.
Hunt v. St.
The the defendant was in highway to maintain a barrier the south side between the detour and barricade. In support of this contention plain- Wiggins City Louis, tiff the case 558, cites v. of St. 135 Mo. 37 S. harmony W. other in 528, Wiggins and cases therewith. In the case said: “A deep, court street has unprotected which a excava- tion, extending adjacent margin, from an lot to its not in a is rea- sonably travel.” safe condition for We have in opin- elsewhere this question adversely ion plaintiff’s ruled to the contention. How- ever, say not many is amiss to that the fact is well known that miles highways upon of state high were constructed embankments without a relating barrier on either side. We decline to extend the rule country highways plaintiff sidewalks to in districts. The cites the (2d) 410, case of Wilmore v. S. W. Holmes, which a contractor working upon highway a was held liable therein who injury driving unlighted suffered as a result of pile gravel an placed paved portion highway by ‘the the contractor. The nighttime accident occurred by was caused a failure to gravel. appear such No facts in the instant case. The did highway defendant not obstruct bar- accident, discloses, ricade and the far so as record was not caused by any act of the defendant. assigned
The other errors need not be determined. The judgment Reynolds, reversed and G., the cause remanded. concurs. *5 PEE, foregoing opinion CURIAM: The C., adopt- Campbell, opinion ed as judgment of- the The court. is reversed and the cause remanded. All concur.