115 Kan. 111 | Kan. | 1924
The opinion of the court was delivered by
The plaintiff was injured in a collision of two automobiles at a street intersection in Florence, and sued the city for damages on the ground that an obstruction to the view which the city had negligently permitted near by had caused the accident.
The city’s demurrer to plaintiff’s amended petition was sustained, and the only question for review is whether a cause of action was stated.
Plaintiff’s original petition had joined the driver and the owner of the other automobile as defendants with the city and the hotel company, and had charged the driver of the other car, Laura Harén, with negligence; but later the owner and driver of the other car were dismissed from the case without prejudice; and plaintiff filed an amended petition narrating the circumstances with much detail. She alleged that Main street in the city of Florence ran north and south and Third street ran east and west; that the city owned a town lot at the northwest corner of the intersection of Third and Main streets, which under some sort of contract between the city and the hotel company was to be the site of a hotel building, and that the hotel company brought together a large quantity of building materials and piled them on the sides and front of the.town lot and into Main street so high as to cut off the view from automobiles approaching the intersection on Main street from the north, and to cut off the view from automobiles approaching from the west; and that the construction of the hotel had been abandoned and all work thereon had ceased for more than two months, and during that time the city and hotel company both knew that the construction work had been abandoned and was not to be completed. Plaintiff also alleged that while she was riding southward on the west side of Main street and approaching the intersection of Third street in an automobile lawfully operated by one Tillie Lambel, neither she nor her driver could see persons or automobiles approaching from the west on Third street because of the obstructions negligently piled and suffered to remain on the northwest corner of the inter
The amended petition lacked nothing in the art and skill of pleading, if the material allegations would impose a liability on the city, and these allegations of fact, of course, were admitted to be true by the demurrer.
Were the obstructions to the view the proximate cause of plaintiff’s injuries? This is commonly a jury question (Railway Co. v. Parry, 67 Kan. 515, 73 Pac. 105), but where the facts are all pleaded with definiteness and precision and admitted by demurrer, it frequently happens that there is nothing to submit to a jury. In Railway Co. v. Columbia, 65 Kan. 390, 69 Pac. 338, it was said:
“In a case where it is either admitted, or from the facts as found established, that two distinct, successive causes, unrelated in their operation, conjoined to produce a given injury, the question of remote and proximate cause becomes one of law for the decision of the court, and not of fact for the determination of the jury, and the determination of this question of law by the jury is not binding or conclusive on the court.” (Syl. If 3.)
To the same effect were Gas Co. v. Dabney, 79 Kan. 820, 102 Pac. 488; Everhardt v. Telephone Co., 91 Kan. 763, 139 Pac. 416.
In Norris v. Ross Township, 98 Kan. 394, 397, 161 Pac. 582, the plaintiff was injured in a runaway accident, caused, as he alleged, by a pile of dirt on the highway which required him to go around the beaten path and while so doing his horse become frightened at a flapping canvas on a cement mixer, and ran away and injured the plaintiff. One question in the case was whether the pile of dirt in the highway was the proximate cause of the plaintiff’s injuries. The court said:
“We think the trial court was correct in holding that the petition fails to state a cause of action. Where the question of proximate cause arises on demurrer to the petition it is necessarily one of law for the court. Railway Co. v. Columbia, 65 Kan. 390, 69 Pac. 338; Gas Co. v. Dabney, 79 Kan. 820, 102 Pac. 488; Eberhardt v. Telephone Co., 91 Kan. 763, 139 Pac. 416.) The proximate cause of the injury was the frightening of the horse, and not the condition of the highway. In Railway Co. v. Bailey, 66 Kan. 115, 71 Pac. 246, where a horse became frightened at escaping steam and ran upon a pile of sewer pipe in the street, it was said:
*114 “‘The proximate cause of the injury, that without which it would not have occurred, was the frightening of the horse. This stood first in the line of causation.’ (p. 122.)” (p. 397.)
In this case there can be no pretense that the obstructions in. the street and beside the street were the direct and immediate cause of plaintiff’s injuries. She was injured by the collision of the two automobiles. The collision was the direct and immediate cause. But for the collision of the automobiles the alleged negligence of the city would not have caused any injury to the plaintiff. The collision was not an inevitable consequence of the obstruction to the view. There were no materials piled on Third street. Laura Harén was driving east on the south half of Third street. After the driver of plaintiff’s car had passed the obstructions to her view on Main street, there was still one-half the width of Third street to cross before a collision with the Harén car was possible. In that state of the facts, it would be straining both the facts and logic to say that the obstructions to the view on and near Main street even furnished all the conditions which caused the accident. (Goodaile v. Cowley county, 111 Kan. 542, 207 Pac. 785.) At most, they merely furnished one of the conditions, they shortened the range of vision, which called for greater caution, slower speed, on the part of both drivers in approaching the intersection. One cannot blindly drive ahead into a street crossing or a railway crossing without knowing what he may meet ahead of him — without assuring himself of safety — and exculpate himself by blaming the consequences of his folly on obstructions which shortened his range of vision. Of course this duty to use due care in driving a car into a place without being assured of safety ahead more directly concerns the driver of a car than it does a passenger or guest; but it is relevant here in the consideration of the proximate cause of plaintiff’s injuries.
The case of Shafir v. Sieben, (Mo.) 238 S. W. 419, 17 A. L. R. 637, is cited by plaintiff as authority for the present action. In that case building materials had been piled on the sidewalk and in the street near a street intersection in Kansas City. The materials completely blocked the sidewalk and half the street so that pedestrians were forced to turn into the middle of the' street for passage. While the plaintiff, Sieben, a pedestrian, was proceeding around this obstruction he was struck by an automobile. Sieben sued everybody — city, contractor, owners of lot, owner of car, and chauffeur. The supreme court of Missouri declared it to be the duty
The judgment is affirmed.
