Hill v. Hill, 37788
| Decision Date | 28 February 1950 |
| Docket Number | No. 37788,37788 |
| Citation | 168 Kan. 639,215 P.2d 159 |
| Parties | HILL v. HILL. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
The petition in an action for personal injuries and property damage examined and held: Allegations of the petition, pertinent paragraphs of which are quoted in the opinion, are not such affirmative allegations of contributory negligence as would require sustaining a demurrer thereto.
Archie T. MacDonald and Russ B. Anderson, both of McPherson, were on the briefs for the appellant.
J. R. Rhoades and George R. Lehmberg, both of McPherson, were on the briefs for the appellee.
Plaintiff brought this action to recover for personal injuries and property damage arising out of a rear-end collision between two trucks, one driven by plaintiff and the other by defendant. Defendant's demurrer to plaintiff's petition was overruled and defendant appeals, contending that the petition does not state facts sufficient to constitute a cause of action in favor of plaintiff and against defendant in that it reveals upon its face that plaintiff was guilty of contributory negligence.
The petition alleges that plaintiff and defendant are brothers; that they were engaged in hauling hay between two points, and at the time of the collision were traveling the usual route for another load. The petition continues:
'4. That as they approached the intersection of the east and west county road upon which they were traveling with the north and south township road between Harper and New Gottland Townships, which intersection was three miles east from the corner where they had turned east and two miles west of U. S. Highway No. 81, they were driving approximately 30 miles per hour and plaintiff was following defendant at a distance of approximately 150 feet. That as they approached said intersection another automobile was proceeding south on the township road and north of the intersection and likewise approaching the intersection, and that such automobile came to a stop on the north side of the intersection. That as defendant was about to pass the automobile stopped on the north side of the intersection he saw that it was driven by Bernard Olson, that defendant knew Bernard Olson was manager of the Rodney Milling Company elevator at Hilton, Kansas, and which elevator had a scale, that defendant sudenly decided he wanted to talk with Bernard Olson about weighing baled hay that afternoon, that defendant immediately applied his brakes with sufficient force to suddenly stop his truck, released the clutch, rolled down the window on the left side of his truck, suddenly stopped in the center of the main traveled portion of the road, and started to put his head out of the window to call to Bernard Olson when the collision hereinafter set forth occurred, and that the defendant suddenly stopped his truck in the center of the main traveled portion of the road without any signal or warning to the plaintiff who he then knew was following him immediately to the rear when he had an opportunity to give a singal, and without turning his truck to the right and driving it off of the main traveled portion of the road when it was practical to do so.
'5. That as plaintiff approached said intersection following the defendant as aforesaid, the plaintiff saw the automobile which he subsequently learned was driven by Bernard Olson, being driven south on the township road north of the intersection and approach said intersection and stop, that plaintiff...
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