Deardorf v. Shell Petroleum Co.

• Decision Date: 09 July 1932
• Docket Number: 30685.
• Citation: 136 Kan. 95,12 P.2d 1103
• Parties: DEARDORF v. SHELL PETROLEUM CO. et al.
• Court: Kansas Supreme Court

12 P.2d 1103

136 Kan. 95

DEARDORF v. SHELL PETROLEUM CO. et al.

No. 30685.

Supreme Court of Kansas

July 9, 1932

Syllabus by the Court.

Driver who, in attempting to pass truck, collided with piping projecting therefrom above rays of his headlights held not guilty of contributory negligence as matter of law.

Driver of automobile can assume that another vehicle will not have projections extending therefrom above range of his headlights.

Driver whose headlights fail to reveal projection extending from vehicle ahead, may approach within reasonable distance before turning to pass.

1. Where a driver, operating an automobile equipped with adequate lights and brakes which enable him to stop within the vision of the lights, approaches a truck on the highway from the rear, which he sees, but is unable to see pipe projecting from the rear of the truck because it is above the rays of his lights, and while attempting to pass such truck the piping collides with the top of his car and causes an injury, held, that the driver is not negligent as a matter of law.

2. The instructions given by the trial court, relating to the duty of one approaching a vehicle on the highway from the rear examined, and held not error.

Appeal from District Court, Sedgwick County, Division No. 4; Isaac N. Williams, Judge.

Action by M. O. Deardorf against the Shell Petroleum Company and others. Judgment for plaintiff, and defendants appeal.

Allen B. Burch, J. B. Patterson, and P. J. Warnick, all of Wichita for appellants.

C. H Brooks, Willard Brooks, Howard T. Fleeson, H. T. Horrell, and Frederick W. Aley, all of Wichita, for appellee.

SLOAN J.

This was an action to recover damages growing out of an automobile accident. The plaintiff prevailed, and the defendants appeal.

On the night of February 16, 1931, the plaintiff was driving his car north on highway No. 81 about ten miles south of Wichita. The weather was misty, and it was necessary to keep the windshield wiper going. The lights on the car were in good condition, and focused on the pavement about 90 feet ahead of the car. He was driving at about 35 miles an hour, and could stop his car in 25 or 30 feet. The defendants were using a large truck on the highway. Attached to the truck was a trailer. The trailer consisted of two large wheels connected by a frame on top of which was a heavy bolster on which the load rested. The top of the bolster was from four and one-half to five feet above the pavement. The truck was loaded with 40 or 50 joints of 4-inch pipe 19 to 21 feet in length. It extended about eight feet back of the trailer. The truck was traveling toward the north. There is a dispute in the testimony as to whether there was a light on the truck but there was no light on the trailer. The plaintiff saw the wheels of the trailer when he was about 200 feet from it, but did not see the projecting pipe. He slackened his speed until he thought he was clear to go around it. He attempted to go to the left of the truck, and the pipe caught the top of the car, causing the injury.

The jury returned a general verdict for the plaintiff in the amount of $1,000, and answered special interrogatories in which they found: That the plaintiff saw the wheels and axle of the trailer when he was about 200 feet from it, but that he did not see any light on the truck; that there was nothing to interfere with his vision within the range of the lights on the car; that he could not see the piping loaded on the truck because there was no light; that he did not try to stop his car, but attempted to pass to the left of the truck. The piping extended from four to eight feet back of the trailer, which prevented his going around the truck. He was traveling between 25 and 30 miles an hour, and speeded up his car as he started to pass the truck. The court entered judgment on the general verdict.

The appellants contend that the appellee was guilty of contributory negligence, and that the court erred in rendering judgment. The appellee alleged that the appellants were operating their truck on the public highway without proper lights. The testimony shows that the truck was loaded with 40 or 50 joints of 4-inch piping which were from 19 to 21 feet in length. The trailer was between eight and ten feet from the truck. The bolster on which the load rested was four and one-half feet above the pavement. The pipe extended back of the trailer from four to eight feet. There was no light on the trailer. The truck was moving at the time of the accident. The statute requires that every automobile used on the public highway between one-half hour after sunset and one-half hour before sunrise shall exhibit a red light visible at the rear end. R. S. 1931 Supp. 8--122. It is established that the appellants failed to comply with this statute, and consequently were guilty of negligence. The argument is that the appellee saw the truck in the road in ample time, and that he had full opportunity to stop his car. The evidence fairly shows that the appellee did see the truck in ample time to have stopped his car, but the piping, which was four and one-half feet from the...