Gorges v. State Highway Commission

Decision Date08 April 1933
Docket Number31023.
Citation137 Kan. 340,20 P.2d 486
PartiesGORGES v. STATE HIGHWAY COMMISSION.
CourtKansas Supreme Court

Syllabus by the Court.

Accumulation of ice and snow on highway due to action of elements held not "defect" within statute imposing liability on highway commission (Rev. St. Supp. 1931, 68--419).

The accumulation of ice and snow on a state highway due solely to the action of the elements is not a "defect" within the meaning of R.S.Supp. 1931, 68--419.

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

Action by Tony Gorges against the State Highway Commission. From a judgment overruling a demurrer to plaintiff's amended petition, defendant appeals.

Judgment reversed, with instructions.

Wint Smith, Asst. Atty. Gen., and Howard T. Fleeson, of Wichita for appellant.

C. A Matson, I. H. Stearns, E. P. Villepigue, John W. Blood, and Francis W. Prosser, all of Wichita, for appellee.

JOHNSTON Chief Justice.

Tony Gorges brought this action against the state highway commission to recover damages claimed to have been sustained by reason of an alleged defect in State Highway No. 54, over which plaintiff was traveling in an automobile. The action is brought under R.S.Supp. 1931, 68--419, and the defect mentioned consisted of an accumulation of natural ice on the highway which caused plaintiff's automobile to skid against cement posts of a guard rail of a culvert, resulting in injuries and damages for which a recovery is sought. A demurrer to plaintiff's amended petition was overruled and defendant appeals.

This is the second appearance of the case in this court. Gorges v. State Highway Comm., 135 Kan. 371, 10 P.2d 834, 836. The petition first filed alleged in effect that for a number of days the highway was defective and dangerous to public travel, in that, ice was permitted to accumulate on it for a distance of about 100 feet near a culvert or bridge where there were cement posts on each side against which his automobile skidded resulting in the injury alleged. On a demurrer to that petition, it was held that the petition did not state a cause of action. On a review of that decision this court determined that defendant was not liable for the injuries alleged. The court after citing a number of authorities stated: "The state, through the highway commission, has under its supervision and control 8,690 miles of road and it would be an unreasonable burden to impose upon the state the duty of keeping highways free from the accumulation of ice during the winter months. Winter brings frequent recurring storms of rain and snow and sudden and extreme changes in temperature which defy prevention, and usually before correction can be made by any means within the control of the state highway commission it is accomplished by sunshine. To hold that liability resulted from these actions of the elements would be an affirmance of a duty which this court is not warranted in interpreting into the statute."

After that decision the plaintiff filed an amended petition setting forth in a greater number of words, and with increased emphasis, that an accumulation of ice on the highway constituted a defect that made the defendant liable for the injury and loss. Among the added averments in his pleading the plaintiff alleged in substance that there was a low place in the highway; that discolored ice had accumulated thereon in which deep icy ruts were cut by the travel over it, resulting in the highway being rough and uneven which constituted an obstruction and a defect in the highway. The added allegations in the amended petition do not, we think, invoke different principles than were applied in the first appeal.

The question is: Did the accumulation of natural ice on a highway constitute a "defect" within the meaning of R.S.Supp. 1931, 68--419? The highway commission is empowered to construct and maintain state highways, and the statute provides that anyone who without contributing negligence sustains damages by reason of defects in a bridge, culvert or state highway, may recover damages from the state upon the giving of proper notice. What constitutes a defect is not stated. It is to be noted that the so-called defect was not structural in character and in itself was not defective. If there had been a defect in construction or in the upkeep which caused the danger and loss, there would be some ground for a recovery. For instance, if there had been a plank out of the floor of a bridge or culvert, or a hole in the pavement of the highway had been cupped out, and the commission had been given adequate notice of the defect without repairing the same, a liability against the state might arise. Williams v. State Highway Comm., 134 Kan. 810, 8 P.2d 946, and cases cited. Here the cause of the injury was not in any fault of the structure itself but was caused by the action of the elements over...

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4 cases
  • Trout v. Koss Const. Co.
    • United States
    • Kansas Supreme Court
    • October 31, 1986
    ...an accident which occurred on a patch of ice. Gorges v. State Highway Comm., 135 Kan. 371, 10 P.2d 834 (1932); Gorges v. State Highway Comm., 137 Kan. 340, 20 P.2d 486 (1933). Conversely, as the KDOT points out, if the ice accumulated due to defective design or construction of the highway t......
  • Taylor v. Reno County, Kan.
    • United States
    • Kansas Supreme Court
    • December 11, 1987
    ...and so impracticable, if not impossible, it could not have been within the intention of the lawmakers." Gorges v. State Highway Comm., 137 Kan. 340, 341-42, 20 P.2d 486 (1933). The liability of the state, county, and township for highway defects was repealed by the Kansas Tort Claims Act. H......
  • Blessman v. State Highway Commission
    • United States
    • Kansas Supreme Court
    • January 24, 1942
    ... ... follows: "Any person who shall without contributing ... negligence on his part sustain damage by reason of any ... defective bridge or culvert on, or defect in a state highway, ... *** may recover such damages from the state of Kansas; ... [121 P.2d 269.] ... The rule is stated in Gorges v. State Highway Comm., ... 135 Kan. 371, 10 P.2d 834, 835, as follows: "The ... liability of the state for injuries growing out of defective ... highways is statutory. It is not founded on the law of ... negligence, but is created wholly by legislative enactment ... The ... above ... ...
  • Speakman v. Dodge City
    • United States
    • Kansas Supreme Court
    • June 10, 1933
    ...has been before the court, except Gorges v. State Highway Comm., which has been here twice. 135 Kan. 371, 10 P.2d 834, and 137 Kan. 340, 20 P.2d 486. In the first the petition alleged the highway was defective in that ice was permitted to accumulate on it for a distance of about 100 feet ne......

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