Aduddell v. Brighton
| Decision Date | 06 April 1935 |
| Docket Number | 32082. |
| Citation | 141 Kan. 617,42 P.2d 555 |
| Parties | ADUDDELL v. BRIGHTON. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Automobile host who drove automobile at speed of 40 or 50 miles an hour with headlights that would not reveal object at distance of more than 75 to 100 feet, and who, when confronted with cattle on highway, attempted to go through opening instead of applying brakes, and lost control of automobile, held not guilty of "reckless and wanton conduct" so as to render him liable to injured guest (Rev. St. Supp. 1933 8--122b).
In an action for personal injuries by a guest in an automobile against the driver of the car, the record is examined, and it is held that the conduct described in the petition and opening statement did not constitute recklessness and wantonness.
Appeal from District Court, Montgomery County; Joseph W. Holdren Judge.
Action by Stephen Edward Aduddell, a minor, by I. E. Aduddell, his father and next friend, against Robert Brighton. Judgment for defendant, and plaintiff appeals.
Thomas J. Brown, Thomas C. Swanson, and Charles R. Cooksey, all of Kansas City, Mo., for appellant.
A. R Lamb, Clement A. Reed, and Dallas W. Knapp, all of Coffeyville, for appellee.
This is an action for damages growing out of an automobile wreck. Judgment was for defendant. Plaintiff appeals.
Plaintiff was a guest riding in the car of defendant at the time of the injury. The petition alleged that defendant while operating his car on a "black mat" type of highway at about 2 a. m. operated it with headlights that were not reasonably serviceable, in that on that type of pavement they could not reveal obstructions such as loose stock a distance of more than 75 to 100 feet, and that defendant operated his automobile at a speed of approximately 40 to 50 miles per hour.
The petition alleged further that because of the above facts defendant struck a herd of cattle and failed to hold the car under control and crashed into a highway culvert wall, injuring plaintiff.
The petition then alleged that defendant knew that the surrounding country was a farming country, and that loose and uncontrolled stock would likely be on the highway, and he knew or should have known that at any speed in excess of 25 miles per hour he would likely strike such obstruction.
The petition characterized the conduct of defendant as "gross and wanton negligence." At the trial, counsel made his opening statement about as it has been given here. He made the further statement that is not in his petition, as follows: "The evidence will be that he did not apply his brake, or do anything in that nature, or anything that would slacken his speed or stop this automobile, but took a chance on going out on the shoulder and going thru a hole, I believe the evidence will show, that he thought was wide enough for him to get through, and in taking that chance he ran over the shoulder, and suddenly was confronted with a culvert and tried to turn sharply back into the road and struck the culvert."
On motion, judgment was given for defendant in the pleadings and opening statement. From that judgment this appeal is taken.
The theory upon which the judgment was entered is that the petition and opening statement did not state facts from which it could be said that the defendant was guilty of reckless and wanton conduct essential to recovery under the provisions of R.S.Supp. 1933, 8--122b. Plaintiff maintains that for defendant to drive a car on a black mat type of highway, at a speed of 40 or 50 miles an hour, with headlights that would not reveal objects a distance of more than 75 to 100 feet, is wantonness.
We are not wanting in statements of what shall constitute...
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... ... Behner, 146 Kan. 827, 73 P.2d 1116; LeClair v ... Hubert, 152 Kan. 706, 107 P.2d 703; Elliott v ... Peters, 185 P.2d 139; Aduddell v. Brighton, 141 ... Kan. 617, 42 P.2d 555; Donelan v. Wright, 148 Kan ... 287, 81 P.2d 50. (3) The granting of a new trial on the ... ground ... ...
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