Fowler v. Mohl, 38437

• Decision Date: 08 March 1952
• Docket Number: No. 38437,38437
• Citation: 241 P.2d 517,172 Kan. 423
• Parties: FOWLER v. MOHL et al.
• Court: Kansas Supreme Court

Page 517

241 P.2d 517

172 Kan. 423

FOWLER v. MOHL et al.

No. 38437.

Supreme Court of Kansas.

March 8, 1952.

Syllabus by the Court.

In an action for the recovery of damages for the wrongful death of a decedent as a result of a collision with a house being moved along a public highway by defendant in the nighttime the record is examined and it is held: No error shown.

Jerry E. Driscoll, of Russell (Delmas L. Haney and Benedict P. Cruise, both of Hays, and Richard M. Driscoll, of Russell, on the briefs), for appellant.

Harold W. McCombs, of Russell, for appellee.

PRICE, Justice.

This appeal is from a judgment in favor of plaintiff in an action for the recovery of damages for the alleged wrongful death of plaintiff's decedent resulting from a collision on a public highway.

The case was here previously on a question of pleadings Fowler v. Mohl, 168 Kan. 416, 214 P.2d 301. See also the companion case of Howe v. Mohl, 168 Kan. 445, 214 P.2d 298, in which recovery was sought for the damage to the vehicle driven by decedent.

For our purposes a brief narration of the facts will be sufficient. Defendant Mohl was engaged in the business of moving houses under a carrier's permit issued by the State Corporation Commission. The other defendant is his insurance carrier. On November 26, 1946, Mohl (hereinafter referred to as defendant) was engaged in moving a house near Russell. It was of a grayish color, was approximately thirty feet high, twenty-four feet five inches in width, and forty-one feet long. It was mounted on dollies and was being pulled by defendant's truck. At approximately 6:30 p. m. the truck and house were proceeding in a southerly direction on U. S. Highway 281 at a point about a mile and a half north of Russell. The highway was of black-top construction and was twenty-three feet in width. The shoulders sloped abruptly at about a forty-five degree angle from the surface of the highway. Defendant's truck was equipped with the usual headlamps and clearance lights, all of which burning. There were no lights or signals of any kind on the house so as to make it visible after dark.

Plaintiff's decedent was driving his panel truck in a northerly direction on the right side of the highway. An employee of defendant was stationed about a quarter of a mile ahead of the truck pulling the house in order to warn those approaching from the south of the fact the house was blocking the highway. Shortly prior to the time decedent came down the highway the driver of another car, also approaching from the south, was flagged down by defendant's employee. During their conversation decedent passed them without stopping. There is evidence that he was driving at a high rate of speed. The evidence is rather hazy and sketchy as to just what defendant's employee did at the time by way of attempting to warn decedent of the danger ahead. His truck crashed into the dollies upon which the house was mounted and proceeded for some twenty-nine feet under the house before coming to a stop. The top portion of his truck was demolished and decedent died a few days later as a result of the injuries sustained.

The jury returned answers to special questions and a verdict against both defendants in the amount of $5,000, and an additional amount against defendant Mohl in the sum of $1,125.21.

Motions to set aside the general verdict, to set aside and strike certain of the answers to special questions, for judgment notwithstanding the general verdict, and for a new trial, all being overruled, defendants have appealed and their specifications of error are fourteen in number.

It is strenuously argued that the demurrer to plaintiff's evidence should have been sustained on the ground that it established contributory negligence on the part of decedent as a matter of law because of the alleged speed at which he was driving, and our attention is called to the familiar rule laid down in Wright v. Nat'l Mutual Cas. Co., 155 Kan. 728, 129 P.2d 271, where it was said:

'Where a person drives an automobile along a highway on a dark night at such speed that the car cannot be stopped or turned aside within the range of vision of the lights on his car, such person is guilty of negligence as a matter of law.' (Syl. 2.)

and to Gabel v. Hanby, 165 Kan. 116, 193 P.2d 239, 241, which held:

'It is the duty of one driving an automobile upon a public highway to look ahead and see vehicles and objects in the line of his vision, and in case of an accident he will be conclusively presumed to have seen what he could and should have seen in the proper performance of his duty.' (Syl. 2.)

On the other hand, defendants recognize the well-established rule to the effect that in considering a demurrer to evidence all of the testimony favorable to the party adducing it must be accepted as true, and if the facts are such that reasonable minds might reach different conclusions...