Carder v. Grandview Tp., Ford County, 49009

• Decision Date: 06 January 1978
• Docket Number: No. 49009,49009
• Citation: 573 P.2d 1121,2 Kan.App.2d 7
• Parties: Varlyn CARDER, Appellee, v. GRANDVIEW TOWNSHIP, FORD COUNTY, Kansas, Appellant.
• Court: Kansas Court of Appeals

Page 1121

573 P.2d 1121

2 Kan.App.2d 7

Varlyn CARDER, Appellee, v. GRANDVIEW TOWNSHIP, FORD COUNTY, Kansas, Appellant.

No. 49009.

Court of Appeals of Kansas.

Jan. 6, 1978.

Review Denied March 31, 1978.

Syllabus by the Court

In an action to recover damages predicated on the theory that the cause of the damages was a defect in a township road, it is held : (1) Whether a particular condition constitutes a defect within the meaning of an applicable statute must be determined under the facts of each case; (2) in the absence of any factual dispute that the rise in the road obstructed the view of the intersection, the trial court correctly ruled, as a matter of law, that the lack of a posted sign warning of a T-intersection constituted a defect in the road; (3) the notice requirement of K.S.A. 68-301 was met when a township trustee admitted prior knowledge of the defect; and (4) contributory negligence is a jury question unless reasonable minds could not differ.

Harry A. Waite, Dodge City, for appellant.

Jack E. Dalton, of Mangan, Dalton, Trenkle & Gunderson, Dodge City, for appellee.

Before FOTH, P. J., and PARKS and SWINEHART, JJ.

PARKS, Judge:

Plaintiff, Varlyn Carder, brought this action for property damages arising from a one-car accident which occurred on a township road maintained by Grandview Township in Ford County. This action was brought pursuant to K.S.A. 68-301 which imposes liability upon townships for damages caused by highway defects. The defendant, Grandview Township, appeals from the $2,500 judgment which the jury awarded the plaintiff.

On the night of December 4, 1974, plaintiff was driving upon an unfamiliar road which formed the stem of a T-intersection. There were no warning signs posted. As he approached the intersection, a slight rise in the road caused his headlights to point up into the air. It was not until he crested the rise that his lights disclosed that the road ended abruptly; at that point he was unable to slow enough to negotiate the necessary right-angle turn. Plaintiff's automobile was damaged when it proceeded across the intersection, hit a metal culvert and landed in a wheat field.

We have considered and rejected defendant's contentions that it should be released from liability as a matter of law.

The controlling issue is whether the absence of a "T symbol" warning sign on the township road constituted a defect within the meaning of K.S.A. 68-301. In substance this statute provides that townships are liable for damages caused by defective highways if the township trustees had notice of the defect for at least five days prior to the time such damage was sustained. Such liability attaches only if the plaintiff was without contributing negligence.

Whether an alleged defect comes within the purview of K.S.A. 68-301 is a question of law to be determined by the court in the absence of any factual dispute. (Coffman v. Fisher, 203 Kan. 618, 455 P.2d 490, Syl. P 1.)

In the instant case no evidence was presented by the defendant, so there is no dispute as to what happened or as to the conditions that existed at the intersection in question. In fact, defendant admitted that there never was a sign warning of the T-intersection and that the plaintiff would not have to prove that aspect of the case.

Plaintiff's evidence showed that others driving the road, Joe Davis a month before and deputy sheriff Steve Adams on the night of the accident, experienced similar difficulty in seeing the intersection and stopping once they crested the rise in the road.

Whether a particular condition constitutes a defect within the meaning of an applicable statute must be...