McCoy v. Fleming

• Decision Date: 07 June 1941
• Docket Number: 35166.
• Parties: McCoy v. FLEMING.
• Court: Kansas Supreme Court

113 P.2d 1074

153 Kan. 780

McCoy v. FLEMING.

No. 35166.

Supreme Court of Kansas

June 7, 1941

Syllabus by the Court.

Independent of statute, plaintiff whose automobile was struck in the rear by defendant's automobile was not negligent in stopping behind the last automobile in a line of automobiles standing on highway instead of moving farther to the right or over on shoulder of highway.

In absence of statute, it is neither illegal nor negligent to permit an automobile to stand on the highway.

Where collision on highway required automobiles approaching to stop, plaintiff whose automobile was struck in the rear by defendant's automobile was not guilty of violating statute prohibiting stopping on paved part of highway in stopping behind last automobile in line of automobiles which had stopped instead of moving farther to the right or over on shoulder of highway. Gen. St.Supp.1939, 8-570.

In action for damages to plaintiff's automobile which was struck in the rear by defendant's automobile when plaintiff stopped in line of traffic stopping on highway because of accident ahead, evidence supported conclusions that defendant was guilty of negligence proximately causing collision and that plaintiff was not contributorily negligent.

Where brief contained no citation of authorities in support of appellant's complaint that trial court adopted the wrong measure of damages in action to recover for damages to an automobile, the Supreme Court could conclude that counsel after diligent search had not been able to find any and could affirm the judgment appealed from.

1. Where an accident between cars using a highway outside a business or residence district causes the highway to be obstructed, and a driver of another automobile approaching the place of the accident is compelled to stop and stops upon the paved portion of the highway, such driver is not guilty of a violation of G.S.1939 Supp. 8-570.

2. Where in connection with a contention the trial court erred no citation of authorities is given in support, the supreme court may well conclude that counsel, after diligent search has not been able to find any, and may affirm the judgment.

3. The record in an action to recover for damages to property sustained in an automobile accident examined, and held the trial court did not err in concluding defendant was guilty of negligence which was the proximate cause of the accident that plaintiff was not guilty of contributory negligence, nor in rendering judgment for plaintiff.

Appeal from District Court, Shawnee County; Division No. 1; George A. Kline, Judge.

Action by James F. McCoy against Kenneth Fleming to recover for property damages sustained in an automobile collision. From a judgment for plaintiff, defendant appeals.

J. A Fleming, of Topeka, and C. A. Fleming, of Lawrence, for appellant.

Raymond Briman, of Topeka, for appellee.

THIELE Justice.

This was an action to recover for damages to property sustained in an automobile collision. The action was commenced in the city court and from an adverse judgment the defendant appealed to the district court, where the cause was tried on an agreed statement of facts which showed the following: On November 3 1939 there had been a football game at Lawrence and for a time thereafter the U.S. highway between Lawrence and Topeka was heavily traveled. At a point about three miles east of Topeka, and about 6 p.m. there was a collision between cars not here involved. By reason of its occurrence, other cars were stopped on the pavement. Plaintiff approached the place of the above collision and brought his car to a stop immediately back of the car nearest to him in the line of the stopped cars, all of the stopped cars being on the right-hand portion of the paved highway. The pavement was eighteen feet wide and when stopped the right side of plaintiff's car was about two feet from the edge of the pavement. After plaintiff's car was so stopped and standing for at least three minutes and while plaintiff was sitting at the wheel and while the motor was running the defendant drove his car into the rear of the plaintiff's car at a point about two feet to the right of the left side causing the damages complained of. Prior to the collision of the two cars here involved, defendant was driving in the rear of a truck and was unable to see plaintiff's car until he passed the truck and was about eighty feet to the rear of plaintiff's car. It was expressly admitted that defendant was negligent in that he was driving his car at an excessive rate of speed and was unable to stop his car within his range of vision. Immediately prior to the collision, defendant was proceeding three feet to the left for each fifteen feet of forward movement. Both plaintiff and defendant had the front and rear lights shining on their respective cars and the highway for at least one hundred feet immediately to the rear of the place where the cars collided and the shoulder of the highway to the right was clear and unobstructed. Plaintiff's car immediately before the accident was worth $155 and immediately after was worth $40, and he lost the use of it for four days, the cost of renting or hiring another being $3.50 per day. Plaintiff's car was not repaired by him.

The trial court, after consideration of the agreed statement of facts and argument of counsel, found the defendant was guilty of negligence which was the proximate cause of the accident and that the plaintiff was free from contributory negligence and entitled to recover...