Burgen v. Smith
| Decision Date | 30 October 1970 |
| Docket Number | Civ. A. No. T-4503,T-4504. |
| Citation | 337 F. Supp. 197 |
| Parties | Nelson L. BURGEN, Plaintiff, v. James O. SMITH et al., Defendants, v. Nelson L. BURGEN et al., Third-Party Defendants. Erma JACOBS, wife and heir at law of Paul O. Jacobs, Plaintiff, v. James O. SMITH et al., Defendants, v. Nelson L. BURGEN et al., Third-Party Defendants. |
| Court | U.S. District Court — District of Kansas |
Charles Fisher, Jr., Topeka, Kan., for Nelson L. Burgen and Erma Jacobs.
Jan Leuenberger, Topeka, Kan., for Sophus Hicks, Steel Haulers, Transit Casualty Co.
Sam Crow, Topeka, Kan., for Judith Jackson.
Carl W. Quarnstrom, Topeka, Kan., for James Smith.
FINDINGS OF FACT and CONCLUSIONS OF LAW
PRELIMINARY STATEMENT AND GENERAL FINDINGS
These cases were consolidated for trial before the Court without a jury by agreement of the parties.
The contentions of the parties, as disclosed by their pleadings, are set forth generally in earlier rulings of the Court announced in connection with motions of defendant James O. Smith for summary judgment (Doc. 49) and will not be repeated here.
The main issues submitted for determination are:
(1) Was defendant Hicks, the driver of a truck hauling a load of pipe for defendant Steel Haulers, Inc., and insured by defendant Transit Casualty Co., guilty of any negligence which proximately caused the collision between the truck left standing on a turnpike bridge by Hicks without flares or warning devices, and the Ford automobile driven by plaintiff Burgen in which the deceased, Paul O. Jacobs, was riding?
(2) Was plaintiff Burgen or deceased Paul O. Jacobs guilty of any contributory negligence under the circumstances?
(3) There is raised as a subsidiary issue, the contention of defendant Hicks, that plaintiff Burgen was guilty of contributory negligence which must be imputed to the deceased Jacobs because Jacobs owned the vehicle in which he was riding and had the right and authority to exercise control over it and to direct its operation at all times pertinent.
(4) Is defendant Hicks entitled to recover against plaintiff Burgen for damages to his truck produced by the collision?
(5) Is defendant Hicks, as third party plaintiff, entitled to recover for any damages to his truck from third party defendant Judith K. Jackson Steeves, and to be indemnified for any amount he may be required to pay plaintiffs?
(6) The amount of damages, if any, to which respective plaintiffs are entitled to recover.
This Court has little difficulty in finding that defendant Hicks was guilty of negligence which proximately caused the collision and produced the injuries of plaintiff Burgen and the death of Jacobs. The Kansas Supreme Court has on several occasions held that a person traveling on a highway has a right to assume there are no hidden, undisclosed defects; that the purpose of highways is for passage, travel, traffic, transportation, and they are not maintained for the purpose of providing storage for automobiles. Furthermore, it is essential under Kansas law, that an automobile or truck display a red light at the rear thereof, which is visible at night, and its purpose is to provide a danger signal to overtaking traffic, and a warning by proper lights is more necessary when the automobile is at rest than when it is in motion. Drake v. Moore, 184 Kan. 309, 315, 336 P.2d 807.
Defendant Hicks advances the contention that his truck was literally overloaded with lights and reflectors and that the addition of flares could scarcely have provided more warning. Hicks overlooks the fact that the lights remaining illuminated on his truck were for the most part on the front end of the machine. He had been driving for considerable time through rain and later a drizzle. His truck had not been recently washed and it is reasonable to assume that, as Burgen testified, no lights appeared on the truck. It may be inferred that the reflectors and the small lights on the rear of the truck, which Hicks insists remained intact, were obscured by the accumulation of dirt, mud and crud a vehicle naturally picks up when traveling through a drizzle as was the situation here. Though Hicks contends that many lights were burning on the front end and around the cab of his truck, these presumably were obscured by the heavy load of pipe and the tarp by which the load was covered, since the lights were not visible to one approaching from the rear.
The truck had just been struck in the rear by the Steeves vehicle. The impact was sufficient to wreck the Steeves vehicle and Hicks filed a third party complaint against Mrs. Steeves and Burgen claiming damages against them in the amount of $4,500.00. The impact between the truck and the Steeves Renault was presumably quite severe.
The contention of Hicks is that he was excused from putting out flares because his first obligation under the law was to render aid and assistance to the persons in the Steeves automobile.
The most stringent rule with which Hicks was required to comply was ICC Rule 192.50, which directs that after an accident he must (a) stop immediately, (b) take all necessary precaution to prevent further accidents at the scene, and (c) render all reasonable assistance to injured persons. . . .
At the time of the collision between the truck and the Renault, Hicks did not know that anyone in the Renault car had been injured so that the provisions of K.S.A. 8-518(a) would not be brought into play. The collision between the truck and the Renault occurred near the east end of a bridge which was 2,315 feet long, a little less than half a mile. Hicks stopped his truck on the bridge about 450 feet from the west end of it. That Hicks did not stop immediately is evident. He went almost a city block beyond the Smith car before stopping. He was familiar with the turnpike and could have driven a short distance further to the west and off the bridge and off of the roadway and onto the shoulder, had he cared to do so, and thus avoided parking his truck on the bridge with its disabled lighting equipment. Hicks failed to comply with his duty and obligation to set out the flares and fusees, which he admits were in his truck, and his failure to do so constituted a neglect on his part to perform the duty imposed upon him by law specifically designed to avoid and prevent the fatal accident which thereafter occurred. Hicks was guilty of negligence and his negligence proximately caused the death of Jacobs and the injury and damage to Burgen. Drennon v. Pennsylvania Casualty Co., 162 Kan. 286, 288, 176 P.2d 522.
There does not seem to be any serious contention that decedent Jacobs was guilty of contributory negligence. Contributory negligence is conduct which involves an undue risk of harm to the person who sustains it. To bar a person from recovery, it must appear that his failure to exercise reasonable care for his own protection was a legally contributing cause to his injury. His failure to exercise reasonable care for his own protection is not a legally contributing cause of his injury unless such conduct was a substantial factor in bringing about his injury. Farmer v. Central Mutual Ins. Co., 145 Kan. 951, 955, 67 P.2d 511. Jacobs was a passenger in the car. When he was confronted with the sudden danger presented by the truck standing on the bridge in front of him, he exclaimed, "watch it." There is nothing in the case from which it might be inferred that he had time or opportunity to do anything more. Defendant Hicks contends that plaintiff Burgen was guilty of contributory negligence because he failed to see the parked truck on the bridge; because he failed to keep the vehicle he was driving under control; because he was driving too fast under the circumstances; and because he did not proceed on the south lane of the westbound trafficway. The evidence indicates that though Burgen had been driving some 60 mph before going onto the bridge, he slowed the Ford car he was driving to 50 mph as he came on the bridge, traveled on the south lane of the westbound roadway, passed the Renault, then the Smith station wagon, and then observed ahead of him a man, standing in the passing (south) lane of the westbound roadway, waving his arms and a flashlight. He saw no other lights to the north of the man and started to pull to his right and into the north lane of traffic to avoid hitting the man with the flashlight. Then, for the first time, he saw a big object in front of him and observed another auto just south of the truck. He started to put on his brakes and observed that the surface of the bridge was slippery. He started to pull back to the south, or passing lane, to avoid hitting the truck but did not have time to make it and the left front end of the Ford car hit the left rear side of the truck.
Plaintiff Burgen had a right to assume that there would be no undisclosed defects such as a truck parked on a bridge without required flares. When Burgen was confronted with the dangerous situation that appeared before him requiring a speedy decision, and it appeared at first that a man was in the south lane of traffic ahead of him, he turned to the north lane to avoid hitting the man, then looming in front of him was the parked truck. At the same time, he also saw another vehicle to the south of the truck. He applied the brakes hard but observed the slippery surface of the bridge, and though he pulled back toward the south lane to avoid the truck, he didn't have time and the Ford struck the truck. He looked around him and discovered his father-in-law was dead. He got out of the Ford and observed a car going on west from the scene of the accident. His head and right knee had been injured and he had chest pains. With the realization that his father-in-law was dead, in a moment of remorsefulness, he did state that it was all his fault, that he didn't know what he would tell his mother-in-law. This statement cannot be held to...
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Dashiell v. KEAUHOU-KONA COMPANY
...have ruled as a matter of law that any contributory negligence of Mrs. Dashiell could not be imputed to her husband. Cf. Burgen v. Smith, 337 F.Supp. 197 (D.Kan.1970), affirmed 454 F.2d 1175 (10th Cir. 1972); McClure v. Price, 300 F.2d 538, 546 (4th Cir. The concept of imputed contributory ......
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Burgen v. Smith, 71-1255.
...therefore affirmed upon the basis of the trial court's findings and conclusions as reported.1 1 Burgen v. Smith et al.; Jacobs v. Smith et al., D.C., 337 F.Supp. 197. ...