Brown v. State Highway Commission
| Decision Date | 03 September 1968 |
| Docket Number | No. 45084,45084 |
| Citation | 202 Kan. 1,444 P.2d 882 |
| Parties | Eugen BROWN, presonally, and as Husband and one of the Heirs of Evelyn Brown, decessed; as Father and Heir of Paul Kelly Brown, deceased; and as Father and Next Friend of Jacqueline Brown, Roberta Brown and Kathryn Brown, Appellee, v. STATE HIGHWAY COMMISSION of Kansas, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A stop sign on the side of a through state highway, which is defectively installed or obstructed from view so that it is inefficient to convey the message intended to control traffic entering the state highway from a county road, is within the purview of K.S.A. 68-419; that is, it is embraced within the term 'defect in a state highway.'
2. The state's liability for a defect in a state highway is purely statutory, and the state has no liability under the statute (K.S.A. 68-419) unless the alleged defect in the state highway comes within the purview of its terms, and such determination is in the first instance a question of law for the court. The court has steadfastly adhered to the proposition that there is no legal foot-rule by which to measure conditions generally and determine with exact precision whether a condition in a state highway constitutes a defect. In the final analysis it is the policy of the Supreme Court to handle each case separately and to either include it in or exclude it from the operation of the statute.
3. While a dangerous condition in a state highway may be a defect in the highway, the dangerous condition is not per se a defect under the statute-one creating liability. In addition to being dangerous, a condition must also be one the legislature is deemed to have intended to fall within the statute creating liability.
4. To be within the purivew of K.S.A. 68-419, it is not necessary that a defect in the state highway be on the traveled portion of the roadway.
5. Where the State Highway Commission has adopted a Manual on Uniform Traffic Control Devices for Streets and Highways pursuant to K.S.A. 8-510, the provisions of K.S.A. 8-511 impose a duty upon the State Highway Commission to maintain traffic control devices upon all through state highways designated by the Commission in conformity to its Manual and specifications which have the force and effect of law.
6. The discretion given the State Highway Commission in K.S.A. 8-511 by the language 'upon all state highways as it shall deem necessary' is a discretion to designate the state highways it deems necessary for public use as through highways, and not a discretion to mark or control only such intersections on a through highway as it chooses.
7. The obligation imposed upon the State Highway Commission by K.S.A. 8-511 to conform to the rules set out in the Manual for Uniform Traffic Control Devices for Streets and Highways requires that the installation and maintenance of a stop sign, to control traffic entering a designated through state highway from a county road, be sufficient and render the stop sign efficient to convey the message intended to control such traffic.
8. While the state has given its consent to be sued for defects in a state highway causing injuries, the state has not given consent by statute that it be sued for defects existing on county or township roads.
9. Where a stop sign designed to control traffic entering upon a designated through state highway from a county road is within the state highway right-of-way at the intersection in question, the conditions off the state highway ritht-of-way surrounding the stop sign may be taken into consideration to determine whether the stop sign is defective or inefficient to convey the message-to stop traffic at the intersection before entering the state highway.
10. In an action to recover for damages caused by reason of an alleged defect in a state highway, the record on appeal is examined and it is held: (a) An alleged defectively installed stop sign within the state highway right-of-way is within the purview of K.S.A. 68-419; and (b) upon all the evidence a jury question was presented as to whether the stop sign in question constituted a defect in the state highway, which was a proximate cause of the injury and damage to the plaintiff.
11. In an action brought pursuant to K.S.A. 68-419 for damages caused by an alleged defect in a state highway, the notice of the defect required by statute need not be formal, but there must be actual knowledge of the defect for the requisite period of time. Actual knowledge of the defect, like any other fact, may be established by circumstantial evidence.
Barton E. Griffith, Asst. Atty., for the State Highway Commission, argued the cause, and John H. Morse, Chief Atty., Warren W. Wagoner, Asst. Atty., and Douglas B. Myers, Dodge City, were with him on the brief for appellant.
Don C. Smith and Camilla Klein Haviland, Dodge City, argued the cause, and R. R. Mitchell and David L. Patton, Dodge City, were with them on the brief for appellee.
This is a damage action resulting from a state highway interestion collision involving three vehicles, wherein the jury returned a verdict in the total sum of $102,029.79 against the State Highway Commission of Kansas. Appeal has been duly perfected.
The primary question is whether a defectively installed or obstructed stop sign at the side of a state highway, designed to control approaching traffic on a county road which intersects the state highway, is a defect in the state highway which comes within the purview of G.S.1961 Supp. (now K.S.A.) 68-419.
The majority of the members of this court hold that a stop sign on the side of a state highway, which is defectively installed or obstructed from view so that it is inefficient to convey the message intended to control traffic entering the state highway from a county road, is within the purview of 68-419, supra; that is, it is embraced within the term 'defect in a state highway.'
The case was tried to a jury in the lower court on the theory that the defectively installed or obstructed stop sign in question was within the purview of the statute, and that it was a question of fact for the jury to determine from the evidence in the case upon the instructions given whether or not a defect existed in the state highway, and, if so, whether it was the proximate cause of the resulting injuries and damage.
Inasmuch as the jury resolved all fact questions in favor of the plaintiff, the facts will be stated from the evidence most favorable to the plaintiff.
The intersection in question is dangerous. A good, elevated, hard-surfaced county road known as the Coronado Bridge Road intersects a high speed state highway known as U. S. No. 154, approximately two and one-half miles east of Dodge City. The highway carries traffic from Dodge City toward Greensburg, Pratt, Kingman and Wichita. There was a stop sign on the state highway in the southeast part of the intersection within the highway right-of-way facing northbound traffic on the county road. A shelter belt on private property south of and parallel to the state highway right-of-way extended west from the county road. There was a cluster of bush-like trees or shrubs growing on the east side of the traveled portion of the county road located approximately one hundred to one hundred fifty feet south of the intersection (giving the minimum distance testified to by the witnesses) obstructing view of the stop sign. The obstruction was described by witnesses in various ways: a tree, a sort of second growth bush-like tree, a bushy tree. The size of the obstruction was not made clear by the evidence. One witness described it as being about twelve feet across and about twelve to fourteen feet high. Another described it as a slight little bush.
About noon on the 23rd day of June, 1963, William Morris Eggleston of Mt. Ida, Arkansas, an itinerant farm laborer with a blind right eye, was driving his 1953 Ford automobile north on the Coronado Bridge Road on his way to Jetmore, Kansas. At the same time Eugene Brown was driving east on U. S. Highway No. 154 with his family enroute to Bucklin. Also, Don Vogel was driving west on U. S. Highway No. 154 on his way to Dodge City. Eggleston failed to see the stop sign heretofore mentoned and drove into the intersection without stopping. He collided with the Brown automobile, thereby in turn causing it to collide with the Vogel automobile.
Mrs. Brown and one son were killed in the accident, and the other occupants of the Brown vehicle were injured.
There was no crossroad sign on U. S. Highway No. 154 warning the driver of the Brown vehicle of the crossroad in question, and there was no 'stop ahead' sign placed on the county road warning travelers on the county road of the stop sign at the intersection in question.
There was testimony to the effect that the stop sign in question could not be seen by a motorist traveling north on the county road until he was even with the cluster of bush-like trees or shrubs. Eggleston testified he did not see the stop sign at all and was not aware that he was approaching an intersection of a state highway until it was too late to stop. Other witnesses who were familiar with the intersection said they stopped because they knew a stop sign was there, but the stop sign could not be seen in time to stop.
The action was filed by Eugene Brown to recover damages for the death of Evelyn Brown, for the benefit of himself as her husband and his four surviving minor children; by Eugene Brown as sole heir of Paul Kelly Brown, a minor, to recover damages for his death; by Eugene Brown as next friend of David Brown, Jacqueline Brown, Roberta Brown and Kathryn Brown, minors, to recover damages for injuries sustained by each of them; and by Eugene Brown to recover for his own injuries and damages.
The original defendants were the Board of County Commissioners of Ford County, against which damages were...
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