Mowrer v. Osage Tp.
| Decision Date | 07 May 1932 |
| Docket Number | 30206. |
| Parties | MOWRER v. OSAGE TP. [*] |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Evidence held to show that township trustee had notice of highway defect five days before accident (Rev. St. 1923, 68--301).
Automobile driver who turned into road at night in fog and drove into ditch which he knew existed held contributorily negligent as matter of law, precluding recovery from town (Rev. St. 1923 68--301).
1. In an action to recover damages from a township for an injury resulting from a defective highway, of which the trustee had notice of the defect for at least five days, the evidence considered and held to be sufficient to show that the trustee had actual knowledge of the defect more than the specified time.
2. The plaintiff drove his automobile in the darkness and when there was a dense fog which prevented him from seeing the road, and the intersection of another road on which he desired to turn and on which there was a washout and ditch. He undertook to make the turn without seeing or knowing where he was going and drove into the washout or ditch, of the existence of which he was familiar. Held, that his own negligence contributed to his injury and bars a recovery of damages.
Appeal from District Court, Allen County; Frank R. Forrest, Judge.
Action by Donald Mowrer, a minor, by E. T. Wilson, his next friend against Osage Township. Judgment for defendant, and plaintiff appeals.
F. J. Oyler and G. R. Gard, both of Iola, for appellant.
Frederick G. Apt, of Iola (Hubert Lardner, of Ft. Scott, and A. R. Enfield, of Iola, of counsel), for appellee.
Donald Mowrer, a minor, brought this action by his next friend, E. T. Wilson, against Osage township, of Allen county, to recover damages for personal injuries sustained by reason of a defective township highway. The township prevailed, and plaintiff appeals.
The plaintiff produced his testimony, and, when he had rested, the defendant interposed a demurrer upon two grounds, one that the plaintiff had failed to prove that the required notice had been given to the township trustee and that the officer did not have actual knowledge of the defect five days prior to the time of the injury. There was a further ground that the plaintiff was guilty of contributory negligence. The court sustained both grounds of the demurrer, and gave judgment for defendant.
It was contended, first, that the plaintiff's testimony was short in respect to the showing of the requisite notice of the defect in the highway, and, second, that the plaintiff was guilty of contributory negligence in driving into a defect with which the plaintiff was familiar when he could not see where he was going. A washout on the side of the highway which extended about six feet towards the center of the traveled part, and was about six feet deep and four and one-half feet wide, had existed continuously for a number of years near the intersection of a north and south road with one running east and west. On the morning of December 13, 1929, at about 6 o'clock, when there was a dense fog, the plaintiff drove his automobile south, and attempted to turn west on the intersecting road which was familiar to him, near the washout mentioned, and had only proceeded thereon a few feet when his automobile fell into the hole and caused the injury for which he asked damages from Osage township. It appears that soon after the accident the township erected a guard railing around the hole.
The action is purely statutory, and is brought under R. S. 68--301, which provides: "Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge, culvert, or highway, may recover such damage from the county or township wherein such defective bridge, culvert or highway is located, as hereinafter provided; that is to say, such recovery may be from the county when such damage was caused by a defective bridge, culvert, or highway constructed wholly or partially by such county, and when the chairman of the board of county commissioners of such county shall have had notice of such defects for at least five days prior to the time when such damage was sustained; and in other cases such recovery may be from the township, where the trustee of such township shall have had like notice of such defect."
No direct evidence was produced as to the notice required by the statute, but there was testimony that the trustee had traveled over the road when he was assessing the property of a witness in March, 1929, seven or eight months prior to the accident, and saw the conditions at the intersection, including the washout. The trustee, it appears, made an assessment of the same witness in March, 1930, and, in a conversation as to the accident, the trustee was asked if anything was to be done towards paying damages for the injuries sustained by plaintiff, and the trustee answered that he would like to do something for the boy, but did not know of anything could do for him. He was then asked if there was any difference in the defect now from what it was in March, 1929, when he went over the road, and his reply in effect was: The only difference was the erection of a bannister or railing around the defect which had been erected the day after the accident. The trustee admitted to witnesses that he had traveled over the highway in 1929 several times before the accident. The evidence tends to show that the obvious defect had existed many years prior to the injury of plaintiff, and to show that the trustee could not have failed to observe the conditions existing at the intersection in going forward and back over it. It is argued that his attention was not called to the specific defect, and that knowledge of it cannot be implied from its long continuance. This is true, but the evidence relating to the place, the nature of the defect, and his admissions to others showed that he had actual knowledge of the defect, and also that it was dangerous to travel. Of course, in the interim there might have been an improvement or repair of the road, but the trustee admitted to parties that there had been no change or repair between the time he went over the road in 1929 and the time of the accident.
Under the testimony he had knowledge sufficient to compare the defect as it existed in March, 1929, with its condition in December, 1929, and stated that in that time there was no change except as to the guard railing put around it after the accident occurred. All the testimony shows that the defect, a patent one, had existed for many years prior to the accident, and the condition was prolonged down to the occurrence of the accident. Under the statute, actual notice is required, but a formal notice is not essential. It is enough if the trustee had actual notice of the defect, however gained. Actual knowledge of the defect, it is held, is the equivalent of the required actual notice. Erie Township v. Beamer, 71 Kan. 182, 79 P. 1070.
Under the evidence, we hold that the trustee had actual knowledge of the defect more than five days before the occurrence of the accident as well as of its dangerous character.
Notwithstanding this holding, our view of the evidence is that the plaintiff is not entitled to recover damages because of his own negligence which contributed to the accident and the injury. The plaintiff, who was about sixteen years old, drove his automobile towards the intersection in the dark of the early morning, about 6 a. m. of December 13, 1929, when a dense fog prevailed over that region, and he admits that, although the lights on his automobile were in good condition, he could not see where he was traveling on account of the fog and darkness, and that he could not even see a stone arch bridge at the intersection. He testified in reference to the situation at the intersection:
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