Green v. Higbee

• Decision Date: 06 July 1954
• Docket Number: No. 39418,39418
• Citation: 272 P.2d 1084,176 Kan. 596
• Parties: GREEN v. HIGBEE.
• Court: Kansas Supreme Court

Page 1084

272 P.2d 1084

176 Kan. 596

GREEN v. HIGBEE.

No. 39418.

Supreme Court of Kansas.

July 6, 1954.

Syllabus by the Court.

1. A blind intersection of rural roads, without stop signs or traffic signals, presents a highly dangerous place which all motorists, in the exercise of due care, should approach with caution commensurate with the hazards involved, and this is especially true where it is known that for some distance near the intersection it is so completely blind that, when vehicles approach at right angles, neither motorist can see the other's vehicle until it is entering or has entered the intersection.

2. Stop and right-of-way statutes pertaining to intersections at through highways are not controlling with respect to conduct at intersections such as that described in paragraph 1, following Revell v. Bennett, 162 Kan. 345, 176 P.2d 538.

3. The right of way at an intersection such as that described in paragraph 1. is not an absolute and inflexible right but a relative right. Its main purpose is to demand care of motorists commensurate with the danger of collision.

4. The right of way and the right to assume absence of negligence by others does not absolve the possessor of the prior right of the consequence of his own independent negligent acts. Such rights may not be invoked by one who has violated the rules of the road himself by recklessly driving through a known blind intersection, such as that described in paragraph 1., without previously maintaining a lookout, from places where he might have seen an approaching vehicle, at a speed which admittedly renders it entirely impossible to avoid injury to himself and others, after reaching the intersection, and without sounding a warning of his approach.

5. Where the only evidence involved consists of admissions by a party which plainly convict him of negligence which contributed to an injury advantage may be taken thereof by demurrer.

6. Whether an act, or acts, constitute negligence, or a contributing cause of injury, is ordinarily a question for the jury but where all the evidence upon which a party relies for recovery consists of his own admissions which clearly disclose the injury was the direct result of the concurrent negligence of two motorists a question of law is properly presented for determination of the court.

7. Plaintiff's evidence examined and held, the demurrer thereto was properly sustained.

William Hergenreter, Topeka, argued the cause, and Wendell L. Garlinghouse, Warren W. Shaw, and Fred Carman, Topeka, were with him on the briefs for appellant.

James D. Waugh, Topeka, argued the cause, and James A. McClure, Robert L. Webb, Ralph W. Oman, Philip E. Buzick, and Robert A. McClure, Topeka, were with him on the briefs for appellee.

WEDELL, Justice.

The plaintiff appeals from an order sustaining a demurrer to his evidence in an action involving a collision of motor vehicles in a rural intersection.

The only material testimony was that of appellant. It, in substance, was:

The collision occurred on the morning of October 8, 1951; he was driving a 1950 Ford one ton truck; the day was clear and the road on which appellant was driving was dry and in good condition; he approached the intersection on a county road from the east; appellee approached the intersection on a township road from the south; both roads were fifty feet wide from fence line to fence line; there were no stop signs on any side of the intersection; there were road signs both east and west of the intersection indicating that the county road continued or turned to the north towards Berryton; both parties were thoroughly familiar with the blind intersection, having previously approached it from all directions; the east and west road carries the heavier traffic; there are wide curves to the north of the intersection on both the east and west sides thereof but not to the south; the east and west road is a gravel road the township road to the south of the intersection is a rock or gravel road; there is a slight rise towards the intersection from both the east and south; the southeast corner of the intersection is a blind corner due to a hill or knoll to the southeast and to grass and weeds which were higher that year by reason of the heavy rains; the township road was depressed below the surface of the surrounding terrain which, with all other facts, combined to make that a blind corner; a ravine crosses the east and west road at a point approximately 400 to 500 feet east of the intersection; at that point and at some other points a traveler approaching from the east could see to the south or township road and at other points he could not; the distance across there would be approximately a fourth of a mile or perhaps sixty rods; the same would be true concerning a traveler on the township road south of the intersection who was looking towards the northeast; for a short distance nearer to the intersection the southeast corner was entirely blind to both drivers; a car coming from the south passes out of sight behind the bank.

Appellant's testimony, in substance, further disclosed:

He looked to the north and to the south as he crossed the ravine and saw no cars; that point was 400 or 500 feet east of the intersection; he was then traveling at the rate of approximately fifty miles per hour; at that point he reduced his speed to between forty and forty-five miles per hour; the next time he looked was after he had entered or just as he was entering the intersection; he looked to the north; he looked to the south, he believed, just the instant before he was struck; he first saw defendant's car after he was in or just as he was entering the intersection; he first saw defendant's car after he was partly or most of the way through the intersection; he saw the defendant's car for only a second; he stated it happened 'Just like that'; he did not see defendant's car long enough to estimate its speed; he further stated, 'Well, I would say I was in the intersection first'; he heard no horn or warning sign prior to the impact; he did not sound his horn prior to entering the intersection; he did not apply his brakes; he went right into the intersection at about forty or forty-five miles per hour; he could not stop at that speed in less than fifty to fifty-five feet; when he looked south at the intersection it was too late to stop; he stepped on the gas and tried to get clear; he supposed he turned the wheel somewhat, but just very slightly, if any.

Appellant's testimony, in substance, further disclosed:

Defendant's car struck the left rear wheel and left side of plaintiff's truck bed; the left wheels of his truck were north of the center of the east and west road; the front of his vehicle was west or just past the center of the intersection when it was struck; the left rear wheel of his truck was at about the center of the road, maybe a little to the west; the left side of the bed of his truck which was hit was directly above the left rear wheel; the impact pushed the back end of his truck north; his truck continued in a sideway position and came to a stop when it hit the ditch on the south side of the road about 100 feet west of the intersection; when it hit the ditch the rear end of his truck swung around leaving the truck facing the north after it came to rest; when defendant's car stopped it was facing north with its front end just north of the center of the east and west road.

Defendant demurred to plaintiff's evidence on the ground it did not establish a cause of action and showed plaintiff was guilty of contributory negligence. In sustaining the demurrer the district court concluded plaintiff's own evidence disclosed he, as well as the defendant, was guilty of negligence at the blind corner.

Numerous cases from this and other jurisdictions are cited by the parties in support of their respective views. It would add little, if anything, to the body of our law to review them all and we shall not do so. Appellant relies primarily on our decisions in Lawrence v. Kansas Power & Light Co., 167 Kan. 45, 204 P.2d 752; Thompson v. Barnette, 170 Kan. 384, 227 P.2d 120; Fry v. Cadle, 171 Kan. 14, 229 P.2d 724; and Cain v. Steely, 173 Kan. 866, 252 P.2d 909. Whatever one's views may be concerning the correctness of the decisions in some of those cases it is readily apparent they cannot be controlling in the instant case. There are highly important facts which plainly differentiate them from the instant one.

In none of them did the plaintiff run into a known blind intersection at a speed which he could not possibly control within the intersection such as that admitted by appellant in this case. In each of them the plaintiff at least testified he had maintained a continuous lookout for approaching vehicles on other highways or streets before attempting to enter the intersection. In each of them plaintiff testified he reduced his speed to a low rate before entering. Their speed, prior to reducing it, already had been much lower than that at which appellant entered the intersection in the instant case. In all of them plaintiff at least testified he had entered well into the intersection first and also concerning circumstances which in his mind indicated exercise of caution. In three of them there also was some indication plaintiff exercised, or thought he exercised, some judgment, after having entered the intersection first, in determining whether he might safely proceed.

It should be, and probably is, unnecessary to narrate further the facts in those cases. Since appellant, however, insists those cases are controlling it may be well to state briefly the facts therein which were material on demurrer to plaintiff's evidence.

In Lawrence v. Kansas Power & Light Co., supra [167 Kan. 45, 204 P.2d 753], plaintiffs, passengers in a car, brought an action against a bus company to recover damages resulting from a collision at an intersection in the city of Topeka. There were no...