283 P. 661 | Kan. | 1930
The opinion of the court was delivered by
This is an action brought by George L. Tuer to recover damages for injuries to his automobile and certain clothing in the overturning of the automobile caused, it is alleged, by the negligence of the defendant. Damages in the sum of $400 were recovered. The defendant has appealed.
The.questions involved are, first, the exclusion of evidence that a witness smelled intoxicating liquor on one of the party in the automobile other than the plaintiff. There was nothing to show that plaintiff had been drinking liquor or that he had ever done so. Obviously there was no error in the ruling.
The principal question presented is whether the injury was the
The defendant contends that while the law required the contractor to provide warning signs and mark the detour, it is unquestioned that the plaintiff saw the brush-pile barrier which afforded him a warning as effective as statutory signs would have done, and that in failing to stop the car he was guilty of contributory negligence. Plaintiff says that although the barrier was seen by him the brush was dry, the leaves withered, and that the lights of his car shone through it and that it did not constitute a warning. The findings of the jury respecting the questions follow:
“1. How far south of the pile of brush could the plaintiff with reasonable and due diligence have first seen such brush or obstruction? A. About 50 or 60 feet.
“2. Did plaintiff in fact see such pile of brush? A. He claimed he saw some object.
“3. At what rate of speed was the plaintiff driving his automobile immediately prior to his making the turn to the detour? A. About 20 to 25 miles.
“4. In what distance could plaintiff have stopped his car at the speed he*460 was driving when he could with due diligence have seen the pile of brush? A. About 20 to 25 feet.
“5. At what distance could the plaintiff, by the use of the headlights on his car, see to distinguish objects ahead of him upon the highway? A. About 35 or 40 feet.
“6. How far to the north of the detour was the pile of brush? A. About 15 feet.
“7. How far to the north of the pile of brush was the bridge under construction? A. About 47 feet.
“8. Could the plaintiff if he had looked ahead have seen the pile of brush in time to avoid the injury? A. We don’t know.
“9. Do you find that the plaintiff was guilty of contributory negligence? A. We don’t think so.”
It may be assumed that it was the duty of the defendant to have placed other lights and warnings required by the statute and that he was negligent in that respect. He alleged that such warning signs had been provided and put up but that some of them had been taken down by the highway authorities the day previous to the accident. It appears that he did provide as a warning sign a barrier of poles and brush, 3 to 4 feet high, about 15 feet from the excavation made for the bridge. With the lights on plaintiff’s car, this barrier could have been seen by plaintiff 50 to 60 feet before reaching it. He not only could have seen the warning, but he admits that he did actually see it. He was running his car at a moderate rate of speed and could have stopped within 20 to 25 feet. His wife, riding with him, saw the obstruction and called his attention to it. He applied his brakes but did not stop the car to make an investigation of the danger against which the barrier was provided. Instead he drove on and as he approached, turned aside into the ditch. The special findings of the jury, which control the general verdict, compel the conclusion that the accidental injury might have been avoided if he had taken ordinary precaution, and the injury must therefore be regarded as the result of plaintiff’s contributory negligence. The findings are consistent with plaintiff’s testimony, and while the jury returned a general verdict in his favor, the facts found by the jury should have led to a verdict for defendant. It has been held that it is negligence as a matter of law to drive an automobile in the nighttime at such a speed that it cannot be stopped within the radius of its headlights or within a distance that objects, obstructions and danger signals ahead of it can be seen. (Fisher v. O’Brien, 99 Kan. 621, 162 Pac. 317.) Here the obstruction and danger signal was
Following these authorities, the judgment must be reversed and the cause remanded with the direction to enter judgment for defendant.