103 P.2d 835 | Kan. | 1940
The opinion of the court was delivered by
This was an action for damages for personal injuries sustained in a motorcycle casualty alleged to have resulted from negligence of defendant in not keeping its street in safe condition for travel. The trial court overruled defendant’s demurrer to plaintiff’s supplemental (amended) petition, and defendant has appealed.
But one point is argued: Was the city under any duty to maintain a reasonably safe street for plaintiff to use the motorcycle he was riding at the time of the casualty? The amended petition, as it pertains to this point, may be summarized as follows: Emporia street in El Dorado is a main-traveled, paved, north-and-south street. It is intersected by Central avenue, an east-and-west street. Sometime prior to the casualty three holes, about four feet east and west and two feet north and south, had been cut through the pavement by the city in repairing its water mains, or by the gas company, with a permit from the city, in repairing its gas mains.
Appellant cites and relies on the doctrine ruled in McCarry v. Center Township, 138 Kan. 624, 27 P. 2d 265. It was there held:
“A township is not liable to one driving an automobile, for injury received on the ground that the highway over which the motorist wasi driving was defective, where the motorist was unlicensed and under the statute was prohibited from driving upon the highway when the accident occurred, even though there was no causal relation between the violation of the statute by the motorist and the injury he sustained.”
Appellee concedes the soundness of the doctrine there announced, but seeks to distinguish that case from this on the ground that the statute then being construed and applied (G. S. 1935, 8-202) contains a prohibition against any person who does not have a driver’s license from driving upon the highway, and contends the statutes
“Every owner of a motor vehicle . . . intended to be operated upon any highway in this state shall, before the same is so operated, apply for and obtain the registration thereof.” (G. S. 1935, 8-127.)
“The number plates assigned to vehicle shall be attached to the front and rear thereof, and shall be so displayed during the current registration year. . . .” (G. S. 1935, 8-133.)
“(a) Every vehicle registration under this act shall expire December thirty-first (31st) of each year, and shall be renewed annually upon application by the owner and by payment of the fees required by law, such renewal to take effect on the first day of January each year. (b) An owner who has made proper application for renewal of registration of a vehicle previous to January first, but who has not received the number plates . . . shall be entitled to operate . . . such vehicle upon the highways upon displaying thereon the number plates . . . issued for the preceding year for such time, to be prescribed by the department, as it may find necessary for issuance of such new plates(G. S. 1935, 8-134.)
“It shall be unlawful for any person ... to operate . . . upon a highway . . . any motor vehicle . . . which does not have attached thereto and displayed thereon the number plate or plates assigned thereto by the department for the current registration year.” (G. S. 1937 Supp. 8-142.)
And G. S. 1935, 8-149, makes the unlawful act just referred to a misdemeanor, punishable by a fine or jail sentence, or both.
Appellee points to the latter part of G. S. 1935, 8-134, and argues the statute recognizes the right of the owner of a motor vehicle to use the old license plates for a part of a current year under some circumstances. That may be conceded; but this is not helpful to him, for the allegations of the petition negative the application of this provision of the statute.
It seems clear from the statutes above mentioned that plaintiff had no right to use the motorcycle on the street at the time of the casualty. By doing so he was violating our statutes and committing
Since it is not argued, we pass the question whether the defect in the street, as alleged, was so great as to make the street unsafe for reasonable use; but on that point see Ford v. City of Kinsley, 141 Kan. 877 (and cases cited, pp. 880-881), 44 P. 2d 255; also the effect on plaintiff’s right to recover in view of the alleged fact that he was looking down, shifting gears, and was not observing the street ahead of him at or just before the time of the casualty. We also pass, although argued by appellant, the effect of a certain ordinance of the city of El Dorado, since it is not referred to in the petition and was not considered by the trial court.
For reasons stated, the judgment of the trial court must be reversed with directions to sustain defendant’s demurrer to the amended petition. It is so ordered.