Hampton v. State Highway Commission, 46376

Citation209 Kan. 565,498 P.2d 236
Decision Date10 June 1972
Docket NumberNo. 46376,46376
PartiesWarren E. HAMPTON, By and Through Thomas E. HAMPTON, Jr., his father and next friend, and Thomas E. Hampton, Jr., Appellees, v. STATE HIGHWAY COMMISSION of Kansas, Appellant.
CourtUnited States State Supreme Court of Kansas
Syllabus by the Court

1. Whether the condition of a highway constitutes a 'defect' so as to render the highway commission liable for damages under K.S.A. 68-419 is a question of law in the first instance, to be determined by the court on a case by case basis. Where circumstances are such that an alleged defect cannot be excluded from the operation of the statute as a matter of law, it presents a proper case for a jury to determine.

2. An allegation that a highway is too flat and has drains that are too few in number and designed so as to be frequently clogged, resulting in a dangerous accumulation of water on the traveled portion of the road whenever there is a rain of any consequence, which water is difficult to see and whose presence is unmarked by warning signs, taken all together alleges a highway 'defect.'

3. Whether a 'defect' exists in a highway is to be determined by the result obtained and not by the standards employed in designing it.

4. Where the state highway commission has notice of a hazardous condition it has a duty to either remedy the condition or give an appropriate warning of its presence.

5. A motion for a continuance is directed to the discretion of the trial court.

6. Instructions are to be construed together and read as a whole, without isolating any one instruction.

7. Instructions should be general in nature insofar as possible, and should not be argumentative or unduly emphasize one particular phase of the case.

8. A driver's prior convictions for traffic violations are not admissible to show that his speed was excessive on a particular occasion.

9. A driver has no legal duty to use an available seat belt, and evidence of non-use is inadmissible either on the issue of contributory negligence or in mitigation of damages.

10. Whether a witness, expert or layman, is qualified to testify as to his opinion is to be determined by the trial court in the exercise of its discretion. That discretion is not subject to review except for abuse.

11. Contributory negligence must be proven and is not presumed. Where a driver's presence on the wrong side of the road is explained by evidence supporting a finding of the nonexistence of negligence, it would have been error to instruct that such presence gave rise to a presumption of negligence.

12. The record in a highway defect case is examined and, as more fully set forth in the opinion, it is held that the trial court did not err in: (1) the instructions given and refused; (2) overruling defendant's motion for judgment notwithstanding the verdict; (3) admitting evidence of prior accidents and driving difficulties caused by the alleged defect, including a report of one such accident; (4) denying defendant's motions for continuance; (5) excluding evidence of plaintiff's prior driving record; (6) excluding evidence of plaintiff's nonuse of his seat belt; (7) in making certain comments in the presence of the jury; (8) in excluding the admitting certain evidence relating to plaintiff's speed, and (9) in permitting plaintiff to amend his petition. It is further held: (1) the question of the existence of a defect was a proper one for submission to the jury; (2) the evidence was sufficient to support the jury's finding that there was a defect which caused plaintiff's injuries, that the highway commission had the required five days notice of the defect, and that plaintiff was free from contributory negligence; and (3) the verdict was not excessive.

Eugene T. Hackler, Olathe, argued the cause, and Joseph J. Poizner, Kansas City, former Chief Atty., State Highway Comm. of Kan., and Robert C. Londerholm, Olathe, were with him on the brief for appellant.

George A. Lowe and Richard L. Roberts, Olathe, argued the cause and were on the brief for appellees.

FOTH, Commissioner.

This is a highway defect case under K.S.A. 68-419 in which the jury awarded plaintiff a general verdict of four hundred fifty thousand dollars ($450,000.00) for his personal injuries and the loss of his automobile. The defendant Kansas state highway commission appeals.

The alleged defect involves an accumulation of water in the west-bound lane of a portion of U. S. Highway 56 which, at the time of plaintiff's injuries, was just south of the limits of the city of Olathe. (It has since been annexed.) The highway here is a four lane east-west road divided by a ten foot median strip. Each two-lane portion is twenty-four feet wide and is crowned at the center, so that water will drain both to the edges of the road and toward the median. The median strip has on each side a combined eight inch curb and thirty inch gutter which catches the water and carries it to ditch inlets, which in turn funnel it into drains located in the center of the median.

From a point where the road is crossed by a railroad bridge known as the 'Frisco Overpass' it extends west almost 900 feet to a break in the median strip. At the break is a 'crossover' which allows access from each pair of lanes to driveways serving manufacturing plants on either side of the highway. A drain is located in the center of the median at each side of the crossover, the two being 100 feet apart.

Two hundred feet east of the crossover is a third drain, located at the low point in the longitudinal grade of the highway. It is on this drain and the surrounding highway that the controversy centers. From the low drain the road rises in each direction, 2 3/8 inches per hundred feet to the west, past the crossover and its two drains, and 3 3/8 inches per hundred feet to the east, toward the Frisco Overpass. There are no other drains in this 650 foot easterly stretch. The transition from downgrade to upgrade at the low point is not a sharp one, but is accomplished by a gradual 'vertical curve' extending overall some 600 feet, making the grade immediately adjacent to the low drain almost flat.

The longitudinal grade is not to be confused with the drop from the crown of the road to the curb which, at the drain, was 2 5/8 inches.

This drain, then, was gathering all water falling between the crown and curb for at least 650 feet to the east and 200 feet to the west in the west-bound lane. It was also serving a similar function for the east-bound lane. It is apparent that if it could not for any reason carry off all of this water as it fell, there would be an accumulation by the drain which could reach a depth of at least 2 5/8 inches at the curb, growing shallower as it approached the crown. The pool thus created would also extend east and west, likewise growing shallower as the longitudinal grade rose. The testimony was that if the gutter and roadway were crown-full the pool would be 373 feet long at the curb. It would, of course, be shorter at the crown.

On August 8, 1967, shortly before 8:00 a. m. plaintiff was on his way to work in his 1965 Corvette. His route took him west on the stretch of road described above, where he was traveling in the lane next to the median. It had been raining heavily earlier that morning (just when is disputed) and there was water on the road. He passed under the Frisco Overpass, hit water in the area of the low drain, and obviously lost control of his car.

His left front wheel jumped the median curb some 88 feet before he got to the crossover; his right wheel followed. Witnesses observed his car in the median-some say spinning-until it hit the drain at the east edge of the crossover. Apparently hitting the depression and ditch surrounding the drain, plaintiff's car 'dipped' and went south into the east-bound lanes.

Oncoming traffic included a 43,000 pound tractor-low boy rig hauling a backhoe. Its driver, going only 25-30 miles per hour, was unsuccessful in avoiding plaintiff's car. In the ensuing collision plaintiff's Corvette 'exploded' and was knocked back, to come to rest directly over the eastern crossover drain.

Plaintiff himself was thrown from his car at some stage in these events, and was found lying in the road north of its final resting place. He was severely injured, as will be discussed later, and his car was a total loss. He was knocked unconscious, and later retained no memory of the accident itself.

Statutory notice of plaintiff's claim was duly given in October, 1967, and this action was instituted on February 23, 1968. For the next year and a half discovery by both sides proceeded apace. Interrogatories were served, objected to, ruled on and answered; depositions were taken; documents were produced; and an amended petition and answer were filed.

Of particular significance is an exchange which took place on July 14, 1969, during a skirmish over interrogatories. The defendant was trying to pin plaintiff down on the exact highway defect claimed, insisting that his claims should be spelled out with particularity in the petition. The trial court summed up plaintiff's position this way:

'THE COURT: Well, it will be considered by the Court that it is the plaintiff's contention that the highway was defectively designed and constructed, and that the defects were as follows:

'That the highway was too flat.

'That it had inadequate drains and drainage to provide for the drainage of surface water.

'That the drainage system was not adequately maintained. And that by reason thereof, undue accumulation of water was upon the highway at the time of the alleged accident.'

Further discussion elicited from plaintiff's counsel his contention that the size and location of the drains, their maintenance and the design of the highway 'all combine together. In the first place, it is too flat and let me put it this way: If there had been the proper grade then the drains might have been adequate, but taking...

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