72 P.2d 75 | Kan. | 1937
The opinion of the court was delivered by
This was an action for damages for injuries sustained by plaintiff, personally, and to his car, alleged to have been
Briefly, the facts shown by the evidence may be stated as follows: A state highway, known as U. S. 40, traverses the state from east to west through Wakeeney, in Trego county. About seven miles west of Wakeeney it curves from the section line to the north around some farm improvements, where there is a round barn, and back to the section line. The place is commonly known in the vicinity as the “Round Barn,” or the “Round Bam Curve” on the highway. Plaintiff is a lawyer, engaged in the active practice at Wakeeney, and is familiar with this highway and the curve therein. Aside from other business which took him over the highway he had a farm, which he supervised, a short distance west of it; also, his elderly mother, whom he visited frequently, lived a few miles west of it. The highway has been improved by the state highway commission with a black mat pavement of standard width, with graded shoulders on each side. Approaching this curve from the west, at an appropriate distance from the beginning of the curve north, there is a large sign, four feet square, painted yellow, with the word “slow” in large black letters. Near it is a “curve” sign, also a sign indicating an “S” curve, all of these being the standard signs used on the state highway for such curves. The curves are not sharp, but on the other hand are constructed on a wide radius. This curve is so graded that the outside of the curve is higher than the other side, and white posts were put along the outside of the curve; that is to say, at the beginning of the curve from the west the grade is higher on the south side than the north, and the white posts are on the south side of the grade, proceeding until the curve nears the farthest point north, where the grade levels off and then becomes higher on the north side than on the south, and the posts are on the north side. That structure continues around the north part of the curve and as the road turns back toward the section line, but when it approaches that line the higher part of the grade is on
On the evening of May 1, 1936, about 10 o’clock, plaintiff, returning to Wakeeney from the west, driving around this curve, saw approaching him from the east several trucks which he took to be oil trucks. They proved to be new trucks, three of them, each having attached to it another truck, being transported across the country, traveling one a short distance behind the other. He observed these when they were half a mile or more from him. When he was at the north part of this curve, around the round barn, the forward one of these trucks was turning northwest on the curve from the east. The truck lights were bright. Plaintiff had been driving about 35 miles per hour, but slowed his car to about 20 miles per hour. It was in good condition, and, although six years old and having been driven a great deal, had been overhauled recently and had good lights and good brakes; he could have stopped it within the distance he could have seen the culvert. Plaintiff’s car and the foremost of the trucks were at such a distance apart and so located on the highway that they would pass on or near this east culvert. Plaintiff pulled to his right so that the right wheels of his car were on the shoulder and only the left wheels on the pavement. He testified he did this in order to give the truck all the room he could and because he could best see where he was by looking at the sand on the shoulder near the edge of the pavement. As he drove along he continued to look at this sand on the shoulder directly in front of his car. He did not look forward to see the upright white posts at the end of the culvert. As the truck came across the culvert its left wheels were a little to the south of the center of the culvert, but there was ample room for plaintiff’s car to pass it on the culvert. Indeed, the culvert was wide enough to accommodate four cars abreast. The pavement passed over this culvert, which was wider than the pavement, but not as wide as
The action is predicated on G. S. 1935, 68-419, which, so far as here important, provides: “Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge or culvert on, or defect in the state highway, . . . may recover such damages from the state of Kansas; . . .” by an action against the state highway commission if certain officers or employees of the state highway commission knew of the defect in the highway as much as five days before the action and notice
Under this statute the state has consented to be sued for damages caused by defects in the highway where the person sustaining such damage is not guilty of negligence which contributed thereto. The state is not an insurer of travelers on its highways; neither is it required or expected to have perfect highways. (Hill v. State Highway Comm., 143 Kan. 129, 53 P. 2d 882, and cases there cited.) Acting through.the state highway commission its purpose is to improve highways. Whether the road was defective within the meaning of our statute is a question of law, if there is no controversy over the facts. (Houdashelt v. State Highway Comm., 137 Kan. 485, 21 P. 2d 343; Espey v. State Highway Comm., 143 Kan. 873, 877, 57 P. 2d 424.) The fact that there is a curve in the highway does not make it defective within the meaning of the law. (Elliott v. State Highway Comm., 138 Kan. 738, 28 P. 2d 960.) Here the highway, with its curves, was constructed in accord with standard improved methods of constructing highways, and appropriate signs had been placed in proper position.
Plaintiff’s real contention is that the highway was defective because there were no posts, painted white, along the south edge of the grade immediately west of the south end of the culvert. We find it difficult to see how that would have prevented plaintiff’s running into them. He did not see the white posts at the south end of the culvert; he was not looking for posts; he was looking intently at the ground immediately in front of his' car; he was not even driving upon the mat pavement. He argues he was not compelled to drive on the pavement, but had a right to drive on the shoulder if he chose to do so, citing Collins v. State Highway Comm., 134 Kan. 278, 5 P. 2d 1106. Obviously, if he did so he should have used due care. We think it clear from this record that there is no defect in this highway, within the meaning of the law, which caused plaintiff’s injury, and that any fair-minded jury would necessarily reach the conclusion that it resulted from plaintiff’s lack of due care. Plaintiff’s negligence may be shown by evidence offered in his behalf. (Houdashelt v. State Highway Comm., 137 Kan. 485, 21 P. 2d 343.) With this view it is no kindness to anyone to have this case tried again. The demurrer to the evidence should have been sustained.
Appellee’s argument is devoted mainly to criticism of instructions
The judgment of the court below is reversed with directions to sustain the demurrer to the evidence and render judgment for defendant.