Blessman v. State Highway Commission

• Decision Date: 24 January 1942
• Docket Number: 35385,35386.
• Citation: 154 Kan. 704,121 P.2d 267
• Parties: BLESSMAN v. STATE HIGHWAY COMMISSION. BLESSMAN et al. v. SAME.
• Court: Kansas Supreme Court

121 P.2d 267

154 Kan. 704

BLESSMAN v. STATE HIGHWAY COMMISSION.

BLESSMAN et al. v. SAME.

Nos. 35385, 35386.

Supreme Court of Kansas

January 24, 1942

Syllabus by the Court.

The liability of the state for injuries growing out of defective highways is statutory and is not founded on the law of negligence. Gen.St.1935, 68-419.

Where motorist drove off highway where township road intersected highway and bridge and collided with superstructure of bridge and there were no structural defects in highway or bridge that color of township road at night blended with color of paved highway and appeared to be part of it, and that no reflectors were installed on bridge or other precautions taken to warn motorists that highway crossed bridge did not render highway "defective" so as to authorize motorist to recover under statute imposing liability on state for injuries growing out of defective highways. Gen.St.1935 68-419.

In two actions to recover damages on account of a defective highway the petitions are examined and it is held that the demurrer to them on the ground that the conditions alleged did not constitute a defect should have been sustained.

Appeal from District Court, Wyandotte County, Division No. 1; Edward L. Fischer, Judge.

Reversed with directions.

Marc Boss, Asst. Atty. Gen., Otho W. Lomax, and F. Quentin Brown both of Topeka, for appellant.

Joseph Cohen, of Kansas City, and Robert H. Hudkins, of Emporia, for appellees.

SMITH Justice.

These two actions involved the same questions of fact and law, were argued together in the district court and were consolidated on appeal. They were brought to recover damages for personal injuries sustained on what was alleged to have been a defective highway. The demurrer of defendant to the plaintiff's petitions on the ground that they did not state facts sufficient to constitute causes of action were overruled. The defendant has appealed.

The petitions describe the alleged defect as follows:

"Plaintiff further states that during all of the time hereinafter mentioned, U.S. Highway No. 50S was a public road and highway in Lyon County, Kansas, running east and west at a point where said road crosses the Neosho River, on a bridge spanning said stream about four miles east of the City of Emporia, Kansas; that during all of the time hereinafter mentioned, there was located a township road, which connected with the said U.S. Highway No. 50S at a point about twenty-five feet west of said bridge, said township road entering said highway from the south; that said township road was covered with chat and gravel and at night the color thereof blended with the color of the concrete pavement of the said U.S. Highway No. 50S; that in approaching said bridge from the west, said highway makes a sweeping curve to the northeast for a distance of about a thousand feet; that to motorists driving at night on said highway from the west to the east towards said bridge, the gravel and chat township road appears as a part of the concrete pavement of the said U.S. Highway No. 50S.

"Plaintiff further states that during all of the time hereinafter mentioned, there were located on the said U.S. Highway No. 50S no signs indicating said highway to cross said bridge, no reflectors on any posts near or approaching said bridge and that there was no painting on the superstructure or guardrails of the said bridge of a white or an illuminative nature, so as to make said bridge apparent to motorists driving at night and that there were no guardrails on the south side of the road for any distance west of the said bridge, rendering said road and bridge defective."

The petition alleged that plaintiff was injured because while driving his car at a moderate rate of speed along this highway he was caused to go off the highway where the township road intersected the highway and following that course he drove his car into the superstructure of the bridge.

The petition charged the highway commission with negligence in failing to erect metal posts and reflector buttons, to install reflectors on the bridge, to paint the bridge with aluminum paint, to place guardrails on the south side of the highway, to place warning signs at a point west of the curve. It is so well settled as not to require a citation of authorities that an action under this statute is not based on negligence. It is purely a statutory one.

Besides the allegations as to the absence of warning signs, the petition charged that a township road which joined the highway upon which plaintiff was traveling at a point a short distance west of the bridge was covered with chat and gravel so that at night the color blended with the color of the paved...