Kelley v. Broce Const. Co.

• Decision Date: 11 April 1970
• Docket Number: No. 45602,45602
• Citation: 468 P.2d 160,205 Kan. 133
• Parties: F. Dean KELLEY, Appellee, v. BROCE CONSTRUCTION COMPANY, Inc., and the State Highway Commission of the State of Kansas, Appellants.
• Court: Kansas Supreme Court

Page 160

468 P.2d 160

205 Kan. 133

F. Dean KELLEY, Appellee, v.BROCE CONSTRUCTION COMPANY, Inc., and the State Highway Commission of the State of Kansas, Appellants.

No. 45602.

Supreme Court of Kansas.

April 11, 1970.

Syllabus by the Court

1.Before the State Highway Commission may be held liable for a defect in a highway, there must be five days notice of the specific defect as provided by K.S.A. 68-419.

2.In an action against a highway construction contractor for damages for injuries resulting from a defect, the record is examined and it is held, the contractor was guilty of negligence in not maintaining proper barricades and warning lights informing the public that the highway was closed or dangerous to travel as provided by K.S.A. 68-2102.

3.The exceptions to the rule, that where a person drives an automobile along a highway at night be must so correlate his speed as to be able to stop within the range of his headlights, are considered and applied.

Byron G. Larson, of Williams, Larson, Voss & Strobel, Dodge City, argued the cause and was on the brief for Broce Construction Co., Inc., appellant.

John H. Morse, Asst. Atty. Gen., argued the cause, and Barton E. Griffith, Roger K. Weatherby and Thomas H. Bornholdt, Staff Attys., and A. E. Kramer, of Kramer, Nordling and Nordling, Hugoton, were with him on the brief for State Highway Commission of Kansas, appellant.

Gene H. Sharp, of Vance, Hobble, Neubauer, Nordling & Sharp, Liberal, argued the cause and was on the brief for appellee.

HATCHER, Commissioner.

This is an appeal from a judgment in an action for injuries resulting from a defect in a highway.

The facts must be stated at some length.For the purpose of some brevity F. Dean Kelley, the plaintiff and appellee, will be referred to as Kelley; and State Highway Commission of the State of Kansas, defendant and appellant, will be referred to as Highway Commission, and the Broce Construction Company, Inc., defendant and appellant, will be referred to as Broce.

The allegedly defective highway located in Stevens County, Kansas was designated U.S. 56 and was undergoing realignment construction at the time of the accident.

During the summer of 1965, Broce began work under its contract with the Highway Commission to surface the new realigned segment of U.S. 56.This contract contemplated a partial acceptance of the segment located between Moscow, Kansas and the Cimarron River Bridge prior to the completion of the road.This segment was to be opened at the request of the contractor so that shoulder material from the old road could be used to complete the new road.On October 1, 1965, a segment of the new road was opened by the resident engineer of the Highway Commission in response to a request made by the contractor two or three days prior thereto.

On the morning of October 1, 1965, the resident engineer and the maintenance department district foreman, who was in charge of placing signs on the segment of newly opened highway, met on the job and discovered that traffic could not be channeled as contemplated in the plans.It was decided that traffic could be routed onto the new highway at Moscow, Kansas and then carried on the realignment or new highway in a northeasterly direction until it reached the point where the two roadways intersected.At that point traffic would be diverted back onto existing, or old, U.S. 56.During the daylight hours of October 1, 1965, the maintenance crew completed the signing of this route.At a point 600 feet to the southwest of the intersection of the two roadways a State Highway Commission employee placed a right reverse curve sign with a 50 MPH speed plate attached to it.The same crew added a 10 foot barricade to an existing 10 foot barricade of the contractor across the surfaced portion of the new road 50 feet north of the intersection of the two roads.They attached to this 20 foot barricade a 'Road Closed' sign, a red arrow pointing to the right, and three delineators or hazard markers.This work was completed shortly before 5 P.M. on October 1, 1965.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Without pride in our artistry or a claim of accuracy we present above a drawing which tends to depict the situation at the scene of the accident.

In the afternoon of October 1, 1965, Kelley left his home in rural Guymon, Oklahoma on his way to Satanta, Kansas to attend a football game.Kelley drove to Moscow, Kansas in his pick-up truck where he came upon a clearly marked detour which put him on what he recognized as a new blacktop highway.He followed this new road until he hit the barricade constructed across the new highway just north of the intersection with the old highway.Kelley testified he did not see the curve sign which was located 600 feet southwest of the intersection of the two roadways.

Kelley estimated his speed immediately prior to the accident at 45 to 50 MPH.When he saw the barricade, he applied the brakes and swerved to the right.The left side of his truck hit the barricade and the truck continued on into the ditch on the right side of the new roadway.

There was a difference in the elevation of the two roadways at this intersection of one foot or more.A ramp was built sloping from the elevation of the new road down to the old road.The ramp was 50 to 100 feet long.Prior to October 1, 1965, traffic had been carried exclusively along old U.S. 56.Where the old highway was intersected by the newly constructed roadway traffic crossed over the new road and continued on old U.S. 56 until it crossed the Cimarron River.

Jess Parum testified he was a passenger in a car proceeding east on the new highway and came upon the accident scene after it had happened but before the investigating officers arrived.He was going to the same football game that plaintiff was attending.He further testified:

'Q.Just tell us, tell the jury in your own words what happened as you approached.

'A.Well, we didn't see anything until we come around the curve and our lights, when the lights come around, why, there was evidence of a barricade there and Bob, the other driver, I said, 'I think that was a barricade.I think we better stop.'So he stopped.That was what was left of the barricade, what we saw.

'Q.Did you come back to the accident scene then?

'A.Yes.

'Q.Now, you say that you started to go around the curve.What direction was this curve?

'A.Well, we were going, I think we was going east and turned a little left turn.

'Q.It was a left curve?

'A.Yes, sir.

'Q.And could you tell this jury where you vehicle was when you first noticed what was left of this barricade?

'A.Well, it just seemed to me we were right in it when we saw it.

'Q.Were you far enough away that you would have been able to stop your vehicle?

'A.No.We agreed that if somebody else had not hit it we probably would have.

'Q.And as you were out there that night, Mr. Parum, did you see any lights in the area where this barricade was?

'A.No, I didn't.

'Q.And as you approached where this barricade was did you see a highway marker sign indicating a curve or jog to the right at fifty miles per hour?

'A.No.'

There were no lights on the barricades.

The jury returned a verdict in favor of Kelley in the amount of $10,000 against the Highway Commission and Broce.They have appealed.

As the liability of the Highway Commission and Broce is based on different legal grounds, the appeals will be considered separately.We will first consider the appeal of the Highway Commission.The Highway Commission presents several grounds as to why judgment should not have been rendered against it.Among them is the contention that there was no notice of the defect five days before the accident.Our attention is called to K.S.A. 68-419 which provides insofar as material here:

'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, not within an incorporated city, may recover such damages from the state; that is to say, such recovery may be from the state when the director of highways, or state highway engineer, or any member of such state highway commission, or any foreman, patrolman, or other employee in charge of the construction, maintenance or upkeep of such highway, shall have had notice of such defects five (5) days prior to the time when such damage was sustained, * * *.'

The petition was in general form and left the specifics open.We look to the preliminaries of the trial for the specific defect claimed.In an answer to an interrogatory the appellee stated:

'The defect was the construction of the State Highway Commission and its contractor who created conditions where the road appeared to turn and didn't, which made the highway unsafe for travel.'

At pretrial conference appellee described the defect as follows:

'It is our contention that to leave the highway in a condition which would lead a driver to turn off believing he was following it and not to mark it and guard it constitutes common law negligence and also constitutes a violation of 2102 * * *.'

In its opening statement to the jury appellee again described the defect:

'Now, it is the contention of the plaintiff that the only way that the highway commission is liable in Kansas for a defect in the highway and we contend when you build a road so that it appears you are going to turn to the left but when in fact you turn to the right that you have built in a defect to the traveling public.You have made it so that it is not safe for the ordinary motorist driving along at nighttime such as Mr. Kelley was and the evidence will show in this case. * * *'

The jury answered special questions involving the Highway Commission as follows:

'If you find for the Plaintiff against the State Highway Commission state:

'(a) The defects existing in the highway five days before October 1, 1965, that were a proximate cause of Plaintiff's...