Conwill v. Fairmount Creamery Co.

• Decision Date: 28 January 1933
• Docket Number: 30913.
• Parties: CONWILL v. FAIRMOUNT CREAMERY CO. et al. [*]
• Court: Kansas Supreme Court

18 P.2d 193

136 Kan. 861

CONWILL v. FAIRMOUNT CREAMERY CO. et al. ^[*]

No. 30913.

Supreme Court of Kansas

January 28, 1933

Syllabus by the Court.

Contributory negligence of motorist colliding with rear of defendant's truck stalled without lights on highway after dark held for jury.

In an action for damages for injuries sustained on a public highway when plaintiff's automobile collided with the rear of defendant's truck which was stalled on the highway after dark and without lights, the evidence examined and held that the question whether plaintiff was guilty of contributory negligence was for the jury and not open to such a ruling as a matter of law.

Appeal from District Court, Ford County; Karl Miller, Judge.

Action by C. F. Conwill against the Fairmount Creamery Company and others. Judgment for defendants, and plaintiff appeals.

Judgment reversed, and cause remanded with directions.

Eustace Smith, of Hutchinson, John A. Etling, G. E. Wilson, and Jerome K. Wilson, all of Kinsley, for appellant.

L. A Flansberg and George A. Lee, both of Lincoln, Neb., and H. W Hart, Glenn Porter, Enos E. Hook, Edw. H. Jamison, and Getto McDonald, all of Wichita, for appellees.

DAWSON J.

This is an appeal from a judgment sustaining a demurrer to the evidence adduced by plaintiff to sustain his cause of action against defendant for injuries sustained when plaintiff's automobile collided with the rear end of defendant's truck which was stalled on a public highway after dark and without lights.

The principal defense was contributory negligence which according to the opinion of the trial court, was so conclusively established that it took the case from the jury; and this is the error complained of in this appeal.

The evidence was to this effect: On the evening of December 15, 1930, after dark, plaintiff was driving his automobile eastward on Highway 50-S a few miles from Dodge City. At that time defendant's large creamery truck in charge of two employees was standing without lights on the highway facing eastward at the west entrance of a concrete bridge. The night was slightly misty and the road was damp and a little slippery. Plaintiff was driving at a rate of 30 to 35 miles per hour. As he approached the place of the accident, he met a westbound automobile, the lights of which prevented him from seeing clearly ahead of him. Immediately behind this westbound car came another whose lights also obstructed plaintiff's view ahead. When he passed this second car, he for the first time saw defendant's truck about 20 feet ahead of him. A third car was then approaching the bridge from the east so that plaintiff could not swerve to the left and miss the truck without danger of colliding with the third automobile, and the distance was too short in which to stop his own car then traveling at 25 miles per hour to avoid the collision with defendant's truck. Plaintiff was severely injured and his automobile materially damaged.

Plaintiff insists that his evidence was sufficient to take the case to the jury. Defendant contends that plaintiff's evidence disclosed that he was guilty of contributory negligence as a matter of law.

It need hardly be repeated that contributory negligence must be clearly established before that question of fact can properly be withdrawn from the jury. To justify that course...