Billings v. Aldridge

• Decision Date: 08 February 1930
• Docket Number: 29,106
• Citation: 284 P. 404,129 Kan. 772
• Parties: A. L. BILLINGS, Appellant, v. R. G. ALDRIDGE, R. G. ALDRIDGE CONSTRUCTION COMPANY, and T. W. NELSON, Appellees
• Court: Kansas Supreme Court

284 P. 404

129 Kan. 772

A. L. BILLINGS, Appellant, v. R. G. ALDRIDGE, R. G. ALDRIDGE CONSTRUCTION COMPANY, and T. W. NELSON, Appellees

No. 29,106

Supreme Court of Kansas

February 8, 1930

Decided January, 1930.

Appeal from Butler district court; GEORGE J. BENSON, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. HIGHWAYS--Liability for Injury from Open Culvert--Effect of Instruction as to Violation of Speed Limit at Near-by Intersection. In an action for damages for injuries received by driving into an open culvert near a highway intersection on a well-traveled road in the nighttime, it was error to bring into the case by instruction or otherwise the violation of the statutory speed limit of eight miles an hour in crossing the intersection, or use such violation directly or indirectly to establish contributory negligence.

2. SAME--Effect of Special Interrogatory as to Violation of Speed Limit at Near-by Intersection. In the trial of a case as described in paragraph one of this syllabus, the court should not have submitted to the jury special questions concerning the eight-mile-an-hour speed limit in crossing the highway intersection near the place of the accident.

3. SAME--Contributory Negligence--Special Interrogatories. Where the special finding of the jury as to contributory negligence, in an action as described in the first paragraph of the syllabus, is that it consists of the failure of the plaintiff to slow down to eight miles an hour at the road intersection and failure to admonish the driver of the danger, it is in effect a finding that there was no contributory negligence.

Burt Comer and Harold H. Malone, both of Wichita, for the appellant.

W. A. Ayres, Austin M. Cowan, C. A. McCorkle, J. D. Fair, W. A. Kahrs, all of Wichita, and W. N. Calkins, of El Dorado, for the appellees.

OPINION

HUTCHISON, J.:

The appeal in this case is by the plaintiff from a judgment in favor of the defendants in an action for damages against a contractor and his foreman, who were constructing a culvert in a public highway, for injuries received when the car in which plaintiff was riding ran into the open culvert.

The plaintiff alleged negligence on the part of the defendants in not placing the warning required by the statute, or any other warning or sign of any nature, at the intersection a short distance west of the culvert; also in not placing any guard rails, obstructions, hindrances, red lantern or notice or warning near the open culvert; also that the negligence was wanton and willful. The petition further alleges that such negligence was the proximate cause of the injuries plaintiff received when the car in which he was riding in the nighttime fell into the open culvert. The answers deny the allegations of the petition and allege contributory negligence, and that defendants did maintain lighted lantern and sufficient barricades on each side of the construction work. The reply was a general denial.

The plaintiff was a dentist about fifty years of age, residing in Wichita, and was going to Butler, Mo., with Allen Elliott, at the invitation of Mr. Elliott, without charge, in Elliott's new Graham-Paige automobile. The other passengers were three of Allen Elliott's brothers and a brother-in-law. They had started from a point near Kechi about 3:30 in the morning of September 15, 1928, and reached the place of the accident about 5 a. m. The work on the culvert had been commenced the afternoon before by the defendants, and it had been excavated about five feet wide and two feet deep entirely across the made road. It was located about seventy feet west of a highway intersection over which the car passed just before reaching the place of the accident. The evidence showed there were two trees with brush on them across the road about twenty-one feet west of the culvert, and a white or farm lantern in the middle of the road on a little mound of dirt about half way between the trees and the culvert. The car crossed the highway intersection at the speed of about 35 miles an hour. The driver and plaintiff saw the trees in the road, but not the lantern. The driver veered around to the south end of the trees and back into the main part of the road before seeing the culvert and could not stop in time to avoid going into it. The plaintiff, sitting in the back seat, had his hands on the rail on the back of the front seat, and when thrown forward had both wrists broken, and suffered other injuries. The plaintiff, the driver, and three of the four others in the car testified as to the speed of the car and seeing the trees across the road. Others testified as to being able to see the trees and the lantern at a considerable distance away from the culvert.

The jury rendered a general verdict for the defendants and answered a number of special questions submitted by the court. After overruling the motion for new trial the court rendered judgment on the verdict for the defendants.

The principal errors assigned by the appellant are the giving and refusing to give certain instructions to the jury, the submitting of certain improper and impertinent questions to the jury, and not sustaining the motion for new trial on account of such errors.

We are at a loss to understand the necessity or purpose of giving instruction No. 20, which informed the jury that there was a law in Kansas against crossing intersections of highways at a greater rate of speed than eight miles per hour. Of course such information was correct, and it was also a fact, as stated in the instruction, that there was evidence in the case that the automobile in which the plaintiff was riding was traveling at a higher rate of speed than eight miles an hour at the highway intersection just west of the culvert. Most of the evidence showed the rate to have been thirty-five miles per hour, which is, of course, more than eight. After telling the jury of the existence of this law and referring to the evidence showing a violation of it by the plaintiff, the court then proceeded to instruct the jury that the law was intended to prevent collisions and accidents at or within the intersection, and that the rate of speed at the intersection would not of itself make the plaintiff guilty of negligence, but the jury might take into consideration the rate of speed just before the accident. The general construction of the law to which the court referred was in harmony with the decisions of this court (Walker v. Faelber, 102 Kan. 646, 171 P. 605; Barshfield v. Vucklich, 108 Kan. 761, 197 P. 205; Shelden v. Wichita Railroad and Light Co., 125 Kan. 476, 264 P. 732), but the statement that it would not of itself make the plaintiff guilty of negligence readily enabled the jury to supplement it from other evidence to complete the guilt in taking the speed feature at the intersection into consideration. It may have been that the case was presented and tried on the theory that a speed in excess of eight miles per hour at the intersection would constitute negligence. If such was the theory, it was apparently outside of the issues, as a matter of fact as well as a matter of law, for we do not find any such specific defense in the answer, and if such was the theory it was wrong, as the instruction in a general way stated, and possibly if such theory was advocated the court might have felt compelled to give such instruction in justice to all parties. We observe from the evidence that every witness who testified as to the accident was asked as to the speed of the automobile when crossing the intersection and very few were asked as to the speed at any other point, and one witness was asked as to crossing other intersections on that trip and how many such there were.

If the court meant in effect to withdraw from the jury the application of all of the evidence tending to show a violation of the speed law at highway intersections as affording any proof of negligence of the plaintiff in this case, then we are at a further loss to understand the consistency of submitting three...