Crawford v. Miller

• Decision Date: 08 November 1947
• Docket Number: 36885.
• Citation: 186 P.2d 116,163 Kan. 718
• Parties: CRAWFORD v. MILLER.
• Court: Kansas Supreme Court

186 P.2d 116

163 Kan. 718

CRAWFORD v. MILLER.

No. 36885.

Supreme Court of Kansas

November 8, 1947

Appeal from District Court, Saline County; Omer D. Smith, Judge pro tem.

Action by Darrell S. Crawford against Donald Miller for property damage sustained in automobile collision. From judgment sustaining a demurrer to his petition, plaintiff appeals.

Judgment reversed.

Syllabus by the Court.

1. In an action to recover damages to property sustained in a motor vehicle collision mere violations of an ordinance or statute regulating traffic upon the streets and highways by the plaintiff are not in themselves sufficient to make him guilty of negligence which will bar his recovery as a matter of law. To prevent his recovery it must appear that his violations of such traffic regulations were the proximate and legal cause of his injuries.

2. The petition in an action such as is described in syllabus 1 examined, and held, to state facts sufficient to require the overruling of a demurrer based upon the ground that such pleading failed to state facts sufficient to constitute a cause of action.

W. S Norris, of Salina (G. A. Spencer, of Salina, on the brief) for appellant.

James P. Mize, of Salina (C. L. Clark and Ralph Knittle, both of Salina, on the brief), for appellee.

PARKER Justice.

This was an action to recover for damages to property sustained in an automobile collision.

The original petition filed by the plaintiff was attacked by a motion to make more definite and certain. That motion is not in the record. The defendant states it was sustained in its entirety while the plaintiff avers it was sustained in part. In any event the petition was amended and now, omitting allegations pertaining to damages and its prayer, reads:

'1. Plaintiff is a resident of Saline County, Kansas, and his correct post office address is Salina, Kansas.

'2. On March 5, 1946, at about 7:15 or 7:30 P.M., the plaintiff was the owner of a certain automobile, being a 1937 Dodge Coupe, Motor No. D5-201237, which was at that time, and had been for approximately one-half hour prior thereto, standing on and occupying the south half or portion of U.S. Highway No. 40, about four miles east of Salina, Kansas, which said automobile was facing in a westerly direction, with all four of its wheels resting on the south half of the paved portion of said highway; that the headlights of plaintiff's automobile had, previous to the collision hereinafter referred to, been disabled, and were not lighted at the time of said collision; that at or about the time aforesaid, at which time it was cloudy and dark, the defendant, who was then and there operating and driving a certain Ford V-8 tudor automobile, approached the point on said highway where the automobile owned by the plaintiff was then standing; that plaintiff's car was not at the time herein mentioned in operating or working condition; that said defendant was driving said Ford V-8 tudor automobile in an easterly direction on the south side of said U.S. Highway No. 40 at a high, unlawful, dangerous rate of speed, and at a rate of speed which was greater than was reasonable and proper under the conditions then existing, to-wit: at a rate of speed in excess of fifty miles per hour; that the automobile of the plaintiff was plainly visible, or should have been plainly visible, to the defendant approaching the same from the west as aforesaid, and was, or in the exercise of due care should have been seen by said defendant in time for the defendant to have stopped or slowed the car driven by him in time to avoid striking the car of plaintiff as aforesaid; that at said time and place, the north half of said highway was open and unobstructed, and there was ample room thereon for the defendant to have turned his car aside and onto the north half of said highway, and to have passed the car of the plaintiff in safety and without striking the same, but plaintiff alleges that the defendant carelessly and negligently continued to drive his automobile, as aforesaid, at a high, dangerous and unlawful rate of speed and at a rate of speed which was greater than was reasonable and proper under the circumstances then existing and at a rate of speed so great that he could not stop or control his car within the range of the vision of his headlights, and carelessly and negligently failed to keep or maintain a lookout for and to observe other vehicles or objects on said highway, and particularly the automobile of the plaintiff, and carelessly and negligently failed to observe signals or warnings given to him, which signals or warnings were given by waving a lighted electric lantern pointed in the direction of the defendant's oncoming car, by one Con Goracke, and carelessly and negligently failed to reduce his speed after he saw, or in the exercise of due care, should have seen the plaintiff's car in a position of peril on said highway, and as a result of and by reason of the careless and negligent acts of the defendant as aforesaid, said defendant drove his said Ford V-8 automobile into and against the automobile of the plaintiff, and thereby and as a result thereof demolished and destroyed plaintiff's said automobile. That at the time and place above mentioned, there were other cars parked along the sides of the highway, the number of said cars being unknown to the plaintiff; that several of such cars, the number thereof being unknown to the plaintiff, were standing at the south side of said highway, south of and off the paved portion of said highway, heading east, with their headlights and tail lights burning, and several of such cars, the number thereof being unknown to plaintiff, were standing at the north side of said highway, and north of and off of the paved portion thereof, headed west, with their headlights and tail lights burning.'

Shortly after the amended pleading was filed the defendant demurred thereto on the ground it failed to state facts sufficient to constitute a cause of action. In due time the demurrer was sustained and plaintiff was given 20 days in which to file a second amended petition. Instead of amending, plaintiff served notice of appeal and now submits for appellate review the question whether the trial court properly sustained the demurrer.

Preliminary to our consideration of the real question raised by the appeal it should be stated that in view of the state of the record the allegations of the amended petition are to be liberally construed in favor of the pleader. This is not a case where it appears the pleading as filed has been attacked by a motion which has been successfully resisted and therefore become subject to strict construction. Neither is it one, since the motion to make more definite and certain is not in the record, where it can be urged portions of the petition amended pursuant thereto on matters attacked are to be strictly construed against the pleader on the theory that in complying with orders of the court in connection therewith the plaintiff has pleaded all that he can that is in his favor.

Boiled down the gist of appellee's contention in support of the trial court's ruling in sustaining the demurrer is that the amended petition clearly shows that at the moment of the accident described therein the appellant was violating three positive provisions of the Uniform Act Regulating Traffic on the Highways, the violation of any one of which was negligence per se and precluded his recovery as a matter of law. Specifically, he charges that pleading shows on its face the appellant's automobile (1) was being operated on the wrong side of the road in violation of G.S.1945 Supp. 8-537, (2) was upon the highway without lights in violation of G.S.1945 Supp. 8-581 and (3) was left standing upon the paved, improved or main traveled part of the highway with all four wheels on the pavement for at least thirty minutes in violation of G.S.1945 Supp. 8-570.

We are not too certain that appellee's claim as to the factual situation disclosed by the petition can be upheld. In fact when its allegations are liberally construed in favor of the pleader and given the benefit of inferences to which they are entitled, it appears that at the time of the accident in question appellant's automobile was not in operation but had come to a stop and was standing on the wrong side of the highway in a disabled condition with its lights temporarily out of order as a result of some unavaidable mishap, under circumstances which made its removal impossible during the time it had been standing there. Thus...