Gorges v. State Highway Commission

Decision Date07 May 1932
Docket Number30473.
Citation10 P.2d 834,135 Kan. 371
PartiesGORGES v. STATE HIGHWAY COMMISSION.
CourtKansas Supreme Court

Syllabus by the Court.

Accumulation of ice on highway held not "defect" within statute rendering state highway commission liable for damages growing out of defects (Rev. St. Supp. 1931, 68--419).

The accumulation of ice on a state highway is not a defect within the meaning of R. S. 1931 Supp. 68--419.

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

Action by Tony Gorges against the State Highway Commission. A demurrer to the plaintiff's petition was overruled, and the defendant appeals.

Judgment reversed, with directions.

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

Cliff A. Matson, I. H. Stearns, E. P. Villepigue, J. W. Blood, and F. W. Prosser, all of Wichita, for appellee.

SLOAN J.

This was an action to recover damages growing out of an alleged defect in the public highway. The petition contained the usual and necessary allegations in such cases, and described the alleged defect as follows: "That on the 22d day of December, 1930, and for some time prior thereto, approximately eight (8) days said public highway *** was defective and out of repair and dangerous to public travel in that ice was permitted to accumulate and form upon said highway at said point at a distance of practically one hundred (100) feet, extending east from a bridge or culvert located at said point; said bridge or culvert at said time having as a part of its construction, five (5) cement posts upon both sides of said highway, which posts were connected by cement railings; said posts extending above the surface of the highway approximately four (4) feet. That the accumulation of said ice at said point, as aforesaid, constituted a defect in said state highway and a danger and menace to the traveling public. ***" The trial court overruled a demurrer to the petition from which the defendant appeals.

The question for review is whether the alleged defect was within the statute, creating liability of the state highway commission for damages growing out of defects in the public highway.

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. Arnold v. Coffey County Comm'rs, 131 Kan. 343 291 P. 762. The statute creating the liability is as follows: "Any person who shall without contributing negligence on his part sustain damage by reason of any *** defect in a state highway, *** and for any damage so sustained the injured party may sue the state highway commission. ***" R. S. 1931 Supp. 68--419.

It has been held that under certain circumstances whether a road is defective is a question of fact to be determined by the jury (Watson v. Parker Township, 113 Kan. 130, 213 P. 1051; Collins v. State Highway Comm., 134 Kan. 278, 5 P.2d 1106), but whether an alleged defect comes within the purview of the statute, creating liability, is a question of law to be determined by the court.

The allegation in the petition with reference to the defect is that the highway was defective and out of repair "in that ice was permitted to accumulate and form upon said highway," and "that the accumulation of said ice at said point as aforesaid constituted a defect in said highway." No other defect is alleged. It is the duty of the state highway commission to keep the highway in a reasonably safe condition for public travel, and liability arises where, after notice, it permits defects to exist in the public highway. It is not, however, an insurer. The user of the highway is bound in all events to use due care, and to take notice of any defect that comes within his knowledge or vision.

This court has held that holes in a road four or five inches deep are a defect (Williams v. State Highway Comm., 134 Kan. 811, 8 P.2d 946); that ruts on the shoulder of a cement slab are a defect (Collins v. State Highway Comm., supra) that the failure to adopt some sufficient method of giving warning of danger due to alterations which were in progress was within the statute (Story v. Brown County, 116 Kan. 300, 226 P. 772; Snyder v. Pottawatomie County Comm'rs, 120 Kan. 659, 245 P. 162), and whether a ditch covered with weeds on the side of the traveled part of the road is a defect is a question of fact to be determined by the jury (Watson v. Parker Township, supra). The failure to cause a hedge to be trimmed along...

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26 cases
  • Martin v. State Highway Commission
    • United States
    • Kansas Supreme Court
    • 26 Enero 1974
    ...of a 'defective bridge or culvert on, or defect in a state highway.' See the discussion of this problem in Gorges v. State Highway Comm., 135 Kan. 371, 373, 10 P.2d 834. The same may be said of K.S.A. 68-301, imposing similar liability on counties and townships, and the court has treated bo......
  • Thummel v. Kansas State Highway Commission
    • United States
    • Kansas Supreme Court
    • 8 Diciembre 1945
    ... ... beyond the statutory limitations or enlarged by construction ... The liability is not founded on the law of negligence but is ... created wholly by legislative enactment. Arnold v. Board ... of County Com'rs of Coffey County, 131 Kan. 343, 291 ... P. 762; Gorges v. State Highway Comm., 135 Kan. 371, ... 372, 10 P.2d 834. Unless the road involved is a state highway ... no liability is created. Summerville v. State Highway ... Comm., 139 Kan. 530, 32 P.2d 224. The rule requiring ... strict limitation has been applied by most of the states. For ... ...
  • Sheen v. State Highway Commission
    • United States
    • Kansas Supreme Court
    • 8 Noviembre 1952
    ...and that the question whether an alleged defect comes within the purview of such statute is a question of law. Gorges v. State Highway Commission, 135 Kan. 371, 10 P.2d 834; Houdashelt v. State Highway Commission, 137 Kan. 485, 21 P.2d 343; Snyder v. State Highway Commission, 139 Kan. 150, ......
  • Trout v. Koss Const. Co.
    • United States
    • Kansas Supreme Court
    • 31 Octubre 1986
    ...notice or nonfeasance, that the State would incur liability for 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 accu......
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