Applegate v. Home Oil Co.
| Decision Date | 12 April 1958 |
| Docket Number | No. 40743,40743 |
| Citation | 324 P.2d 203,182 Kan. 655 |
| Parties | Katie L. APPLEGATE, Appellee, v. HOME OIL COMPANY, a Corporation; Fireman's Fund Indemnity Company of San Francisco, California; and Luther Walton, Appellants. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The record in an action for damages for personal injuries sustained by the plaintiff in a collision between the automobile in which she was riding as a passenger and the rear of a semitrailer truck tractor improperly parked upon the highway where a jury returned a general verdict for the plaintiff together with its answers to certain special questions, examined and held: Under the conditions and circumstances therein disclosed, the trial court did not err in overruling defendants' motion for judgment on the answers to special questions notwithstanding the general verdict in favor of plaintiff.
James A. Williams, Dodge City, argued the cause, and George B. Powers, Wichita, was with him on the briefs for appellants.
John C. Frank, Wichita, argued the cause, and Charles E. Rauh, Ralph J. Thorne and John A. Robinson, Hutchinson, were with him on the briefs for appellee.
This was an action for damages for personal injuries. The jury answered special questions and returned a general verdict for plaintiff. The defendants appeal from the orders of the trial court overruling their demurrer to plaintiff's evidence; their motion to strike answers to certain special questions; their motion for judgment on the special findings; their motion for a new trial, and from the order entering judgment for plaintiff.
On November 16, 1954, Charles F. Applegate was driving his automobile from Newton to Parsons, Kansas. Plaintiff, Katie L. Applegate, his wife, was riding in the front seat with him. They were proceeding east on State Highway 96 and about one and one-half miles east of the Fall River Junction in Greenwood County their car collided with the rear of defendant Home Oil Company's tractor-semitrailer parked on the highway over the top of a hill. Charles Applegate was killed and the plaintiff was severely injured. The day was clear, the sun was shining, there was some wind from the north, and the black top highway was dry. The terrain in that vicinity is hilly. The top of the hill is a plateau-like flat; the highway is practically level from the point of impact for a distance of more than 300 feet to the west and over 200 feet to the east, however, there is a gradual slope to the east, and in leaving the plateau there is a steep downgrade. The highway is approximately twenty-five feet in width, and the shoulders are narrow with deep ditches on each side of the highway. Double yellow no-passing lanes were marked in the center of the highway over the top of the hill.
Approximately 7/10ths of a mile west of the accident hill a vehicle traveling east passes over a smaller hill, down into an intervening valley and up a long incline to the plateau-like flat. A sign prohibiting trash dumping was on the right-hand side of the highway 580 feet west of where the collision occurred. Approximately 80 feet east of that sign and on the north side of the highway was an entrance to a dump area and a second entrance was 50 to 100 feet west of the point of impact.
A few minutes before the accident defendant Luther Walton, driver of defendant Home Oil Company's truck tractor and semitrailer, approached the accident hill traveling east; Arthur Carnes, a helper, was with him. The semitrailer was empty. It was 28 feet long and had a red stock rack; the entire rig was 39 feet in length, seven feet eleven inches wide and slightly over nine feet high. The truck tractor was equipped with a five-speed transmission and a two-speed axle. Walton was on his way to Parsons to pick up oil drums. As Walton started up the hill and about 600 feet west of where the accident occurred he noticed his truck was starting to drag down. He shifted into low gear and the truck continued to drag. He shifted into the lowest gear before coming to a stop. He testified he smelled smoke that smelled like rubber burning, and in looking through the rear cab window he saw smoke coming from the right rear axle. He stopped on the right-hand side of the highway on top of the hill and he and Carnes got out. He went around to the right rear of the tractor to investigate; smoke was coming from the brake drum, but there was no fire. Walton crawled under the tractor and attempted to loosen the brake shoe with a screw driver. Thinking it sufficiently loose, he and Carnes got into the tractor and proceeded approximately ten feet, but the truck continued to drag. He stopped the second time on the south side of the highway with the right dual wheels at the edge of the pavement, turned the motor off and set the air brakes on the semitrailer so the unit would not roll; the brakes were not set on the tractor. The rear of the semitrailer was approximately 300 feet east of the crest of the bill where it flattened out. It was a distance of six feet ten inches from the left rear wheels of the semitrailer to the center of the highway and twelve feet six inches from the center of the highway to the north edge, and nineteen feet and six inches from the left rear wheels to the north edge of the highway. The truck was facing straight down the highway in an easterly direction.
Walton got out of the cab the second time and went to the right rear of the tractor, crawled underneath in front of the wheels and proceeded to loosen the brake adjustment. Carnes also got out and walked a distance of 80 or 90 feet from the rear of the truck to warn traffic coming over the hill from the west. No flags, flares or other warning devices were put out by either Walton or Carnes. Just before the collision Walton shouted to Carnes to come back. Carnes was walking toward the truck and was within thirty-five feet of it when he heard the scream of brakes. He testified he ran into the south ditch. However, he told a highway patrolman at the scene of the accident that he came back to the north side of the truck and was standing north of it when the accident occurred. When Walton heard the skidding car he rolled into the south ditch. Neither he nor Carnes actually saw the Applegate car.
Prior to the accident the Applegates encountered a large herd of cattle crossing the highway a short distance east of Fall River Junction, and reduced their speed; there were cars going east, cars going west, and cars in front and in back of their car. After getting through the herd Applegate resumed his speed. He rounded a slight curve and started down the small hill west of the accident hill. Defendants' parked truck could not be seen from the valley. On the way up the hill the truck still could not be seen. It was only when Applegate was over the crest of the hill that the truck was clearly visible. Applegate was traveling approximately 60 miles an hour. There is nothing in the record to show when Applegate first saw the truck and saw that it was stopped. After their car passed over the crest of the hill Mrs. Applegate exclaimed, 'Oh, they are stopped.' As Applegate proceeded east of the crest a car was seen coming from the east and a man was seen on the north side of the parked truck who made no signs or signals. Applegate applied his brakes and left skid marks on the highway; those made by the right wheels extended a distance of about 159 feet west of the point of impact and those of the left wheels extended 57 feet. The center of the front of the Applegate car struck the left rear corner of the semitrailer and went under it with sufficient force to largely demolish the right side of the Applegate car and move the left rear axle of the semitrailer forward on the frame one and one-fourth to one and one-half inches.
Within a few minutes following the accident two highway patrolmen arrived who measured the highway and skid marks and determined the location of the vehicles. Patrolman Dunkel testified he felt the right rear brake drum of the tractor and it was cool. After the wreckage was cleared away Walton and Carnes drove the truck to Fredonia, a distance of about fifteen miles. There was no evidence that anything had been done to the brake drum prior to the truck being driven to Fredonia. When the truck was driven into his place of business, the garage mechanic did not observe any smoke coming from the brake drum.
On November 20, 1954, Walton entered his plea of guilty in the county court of Greenwood County to the charge of improperly parking the truck on the highway. He was fined by the court, which he paid.
The jury returned a general verdict for the plaintiff and made the following answers to special questions submitted by the court:
'Answer: Approximately 300 feet away.
'Answer: Approximately 300 ft. away.
'Answer: About 60 miles per hour.
'Answer: Approximately 160 feet after he applied his brakes.
'Answer: Yes.
'(b) If your answer to (a) is yes, state what prevented it?
'Answer: We believe according to testimony, that there was a man standing or walking somewhat near the truck and center line of the...
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