Houdashelt v. State Highway Commission

• Decision Date: 06 May 1933
• Docket Number: 30885.
• Citation: Houdashelt v. State Highway Commission, 137 Kan. 485, 21 P.2d 343 (Kan. 1933)
• Parties: HOUDASHELT v. STATE HIGHWAY COMMISSION.
• Court: Kansas Supreme Court

21 P.2d 343

137 Kan. 485

HOUDASHELT v. STATE HIGHWAY COMMISSION.

No. 30885.

Supreme Court of Kansas

May 6, 1933

Syllabus by the Court.

Whether road is defective within statute rendering highway commission liable is question of fact for jury (Rev. St. Supp. 1931 68--419).

Whether alleged defect comes within purview of statute rendering highway commission liable is question of law for court(Rev St. Supp. 1931, 68--419).

Culvert 14 feet wide, located on highway 28 feet wide, held not "defect" within statute rendering highway commission liable for damages caused by defect (Rev. St Supp. 1931, 68--419).

Fact that burden is on defendant to establish contributory negligence does not preclude defendant from taking advantage of plaintiff's own evidence showing him guilty of contributory negligence.

1.Following Gorges v. State Highway Commission,135 Kan. 371, 10 P.2d 834, it is held that under certain circumstances whether a road is defective is a question of fact to be determined by the jury, 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.

2.In an action to recover for injuries sustained on a state highway, where the plaintiff's evidence showed that in a highway 28 feet wide running north and south there is a culvert 14 feet wide located in such manner that 9 feet of the culvert lies to the east of the center of the highway and 5 feet to the west of the center of the highway, and the culvert is guarded with lines of posts from the ends of the culvert to the edges of the road, and there is no evidence as to when the culvert was built and no other evidence of any defect in the culvert, whether the culvert was defective or not was a question of law.

3.While the rule is that the burden is on the defendant to prove contributory negligence, it will not be interpreted to mean that, if plaintiff's own evidence shows him guilty of such negligence as precludes a recovery, the defendant cannot take advantage of it.

Appeal from District Court, Neosho County; Shelby C. Brown, Judge.

Action by A. Houdashelt against the State Highway Commission of Kansas.From an order sustaining a demurrer to his evidence the plaintiff appeals.

James A. Allen and B. M. Dunham, both of Chanute, and P. E. Nulton and G. L. Stevenson, both of Pittsburg, for appellant.

Wint Smith, Asst. Atty. Gen., Atty. State Highway Commission, Edward F. Arn, of Topeka, Asst. Atty. State Highway Commission, and Hugo T. Wedell, of Chanute, for appellee.

THIELE Justice.

This was an action to recover for injuries sustained in an accident on a state highway, and is here on plaintiff's appeal from an order sustaining a demurrer to his evidence.

Summarized, plaintiff's petition alleged that the accident occurred on November 23, 1930, about 6:30 p. m., on state highway No. 6 about 2 miles south of Kimball, and at a point near a bridge or culvert; that the highway and the bridge or culvert were defective, in that the culvert was too narrow to permit safe passage; that it was not in the center of the road; that there were no proper guard rails and barriers at the bridge or culvert; that there was failure to provide any warning by signs and markers, and that the defendant had five days' notice of the defect; that plaintiff, while a passenger in a car with F. C. Houdashelt, was passing on said road "in the exercise of due care and was not then and there guilty of any contributory negligence on his part," and was injured by the car running into posts along the side of the highway; and that notice was given as required by statute and a copy thereof was attached to the petition.Defendant's answer consisted of a general denial and an allegation that, if plaintiff was injured, it was due to his own negligence and/or the negligence of F. C. Houdashelt.

Before the appellant could recover, the burden was upon him to show: (1) That the highway and culvert were a part of the state highway system and not within an incorporated city; (2) that the highway and culvert were defective; (3) that such defect was the proximate cause of the injury; (4) that the state highway commission had five days' notice of the defect in the manner and form as provided by statute; (5) that notice stating the time and place of the accident was given in time and manner as provided by statute.

In considering the matter of the correctness of the ruling, all evidence tending to prove plaintiff's right to recover must be taken as true.At the trial it was stipulated that the highway in question is a part of the state highway system, and that written notice of the injury was given as provided by law.It is conceded that the place of the accident is not within an incorporated city.In summarizing the evidence, only those facts bearing on the correctness of the lower court's ruling will be noticed.

The plaintiff testified he was a farmer 71 years old and had lived in the vicinity of Walnut for 50 years; that on November 23, 1930, he was a passenger in a motor vehicle on highway No. 6, and, as abstracted, in part as follows:

"Mrs. Spoonamore was keeping house for me.My son, Floyd, and I left home for Chanute on the 23rd day of November, 1930.My son from Caney, Kansas, and his wife had been visiting with us on that day.Also, my daughter and her husband from north of town.My son, Floyd, and I left for Chanute for the purpose of taking my son, J. C. Houdashelt, and his wife to the train.We took Mrs. Spoonamore's car for that purpose.We aimed to take my son's car but it was a little out of shape and she told us to take her car.We went to Chanute and left my son and daughter-in-law at the depot.Then my son and I started back home.It was on that trip back home from Chanute that this accident occurred.I was sitting on the right-hand side of the car and my son was driving."

"I don't suppose there was anything only the darkness to obstruct my view of the posts along the side of the bridge as we approached that bridge from the north.We had lights on.I suppose they were good.I saw the light of a car coming from the south as we approached this bridge or culvert.I have no way of telling how far away it was when I first saw the light of that car.It was probably a hundred yards, I could see the lights quite a ways.I don't know whether I could see the lights more than three hundred feet.I saw this car coming before it got to the bridge and I saw it before we got there too.We kept right on going toward the bridge.I don't know whether this car went over the culvert ahead of us or not, I couldn't say.To the best of my knowledge they both struck the culvert at about the same time.I didn't know what our car struck after it hit.I could see until we hit that post.I did not see those posts along the north side of the bridge and along the west side of the road that night.I was not looking for them.I was not paying any attention, I was not driving the car.I was not looking for any posts.We went over that road to Chanute.I can't say whether the posts were painted or not, I don't know, I paid no attention.*** As we approached this bridge or culvert I was looking at the cars that were coming from the south.I was seated on the right-hand side or west side of the car.It was dark and I couldn't see any posts that might have been located on the west side of the road.I wasn't particularly looking for any posts, my sight was directed on those cars.I wouldn't say I was looking for warning signs because I was looking at those cars."

He also testified with respect to his injuries.

F. C. Houdashelt testified he was the plaintiff's son and was driving the car and, quoting from the abstract:

"The highway was surfaced with chat.In my judgment the traveled portion of the highway was probably twenty-four feet wide, something like that.At the time of the accident we were driving south.I was traveling on the right side of the west side of the road.The accident occurred near or at a bridge or culvert located on this highway.I was not familiar with this highway at that time.I had not passed over this highway for probably six months prior to November 23, 1930."

"There was other traffic on the highway just prior to this accident, other automobiles.They were going north.There were at least two.I saw their lights, they were approaching us from the south.They were going at a pretty good lick.I was keeping a lookout down the road ahead of me in the direction I was traveling as I approached these cars.We hit a post there at the bridge.It upset the car, bottom side up."

"The post that we ran into was setting to one side of the bridge.It was setting on the north side of the bridge and on the west side of the highway.I saw the post before I hit it.When I first saw the post I was within a foot or two of it, something like that.At the time I first saw the post we were just meeting one car and the other was up the road toward the south of this bridge.When I saw this post I turned my car or tried to turn it up into the road to the left.The post struck just inside of the right front fender and outside of the front headlight on the right side.As I met this car that passed there at the time I had this accident I was traveling around fifteen miles an hour."

"The lights on the car I was driving were in good condition.Darkness prevented me from seeing these posts that were on the north side of this bridge and on the west side of the highway.That is not the only thing, I was watching the other cars.The lights of the other cars did not blind me.I looked for posts on the west side of the road as we approached the bridge.I did not see them on account of the darkness and I was also watching this other

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