Rohrer v. Olson, 38524

• Decision Date: 12 April 1952
• Docket Number: No. 38524,38524
• Citation: 242 P.2d 825,172 Kan. 674
• Parties: ROHRER v. OLSON.
• Court: Kansas Supreme Court

Page 825

242 P.2d 825

172 Kan. 674

ROHRER v. OLSON.

No. 38524.

Supreme Court of Kansas.

April 12, 1952.

Rehearing Denied May 15, 1952.

Syllabus by the Court.

1. G.S.1949, 8-586, provides, among other things, that whenever a vehicle is parked or stopped upon a roadway or shoulder adjacent thereto in the nighttime, whether attended or unattended, such vehicle shall be equipped with one or more lamps which shall exhibit a white light on the roadway side visible from a distance of 500 feet to the front of such vehicle and a red light visible from a distance of 500 feet to the rear.

2. Where, in the trial of an action to recover for damage to a vehicle which was parked in a manner and under conditions violative of the statute mentioned in the first paragraph of this syllabus and while so parked was run into from the rear by defendant's vehicle, it is apparent from the record that the trial court did not give proper consideration to the force and effect of the mentioned statute and to the question whether its violation can be said to amount to the proximate cause of the collision, the record is examined and it is held that defendant is entitled to a new trial as to all issues.

I. M. Platt and Chas. I. Platt, both of Junction City, argued the cause and were on the briefs for appellant.

C. L. Hoover, of Junction City, argued the cause, and Robert A. Schermerhorn and A. B. Fletcher, Jr., both of Junction City, were with him on the briefs for appellee.

PRICE, Justice.

This is an appeal by defendant from a judgment in favor of plaintiff in a damage action growing out of the collision of two motor vehicles on a public highway.

The collision occurred when defendant's car crashed into the rear end of plaintiff's truck when the latter was parked 'by the side of the road' in a disabled condition and left unattended and without lights or other warning signals in the nighttime.

The theory of plaintiff's case was that defendant negligently drove her car off the main traveled portion of the highway and into the truck, resulting in damage to plaintiff in the amount of $645.60.

Defendant's theory was that any damage sustained by plaintiff was the result of his contributory negligence in leaving the truck so parked, and in her cross-petition she sought recovery for her personal injuries and damage to her car in the sum of $6,246.98.

The case was tried by the court without a jury. The court made conclusions of fact and of law and rendered judgment for plaintiff in the sum of $570.60.

Plaintiff and his family lived on a farm a few miles from Junction City. On Saturday evening, October 24, 1948, his two sons started out for Junction City in his half-ton truck. They had eggs and feed in the truck which they were going to sell in town, and they also planned to have the truck's spare tire, which was flat, repaired. Between their home and Junction City, as they were driving south along Highway No. 18, their right rear tire went flat. Having no spare tire they pulled the truck off to the right side of the highway close to an embankment. They placed the eggs in the cab, locked the cab doors and walked back home, with the intention of returning the next morning to change the tire. The lights of the truck were turned off and no flares or other warning signals were left.

The testimony concerning the exact location at which the truck was left, with reference to the embankment, ditch, shoulder, ridge of sand and the main traveled portion of the highway, is in sharp conflict, as is also the testimony concerning the width and other conditions of the highway at the place in question. We have examined all of this evidence and think the court's findings as to those facts present the conditions substantially as they existed.

With reference to the highway the court found:

'3. Highway No. 18 in the vicinity of the accident, is a gravelled road, comparatively level, but sloping down on each side of the road to the bottom of a perpendicular embankment on each side, the bottom of the ditch where it joins the bottom of the perpendicular embankment, being about sixteen inches lower than the crown of the road. The distance between the two perpendicular embankments is thirty nine and one half feet. The gravelled portion of the road is twenty five feet, and the distance between the gravelled portion of the road and the perpendicular embankment on the east side of the road is seven feet and on the west side of the road seven and one half feet. About four hundred and fifty feet to the north of the scene of the accident there is a slight bend in the road and also a slight elevation of the road, and from such slight elevation and slight bend in the road, the road is practically straight for a distance south of about a half a mile.'

Concerning the condition in which the truck was left, and as to its location with reference to the highway, the court found:

'* * * The right rear tire on the truck went flat, and immediately upon realizing that fact David Rohrer turned the truck off of the road and parked it at the side of the ditch with the right front wheel of the truck about six inches from the perpendicular bank on the west side of the road, and the right rear wheel about eighteen inches from the perpendicular bank on the west side of the road. No part of the truck was in the travelled portion of the highway.

'5. The two boys placed the eggs in the cab and locked the cab and truck, did not leave any of the lights burning, and did not put out any flares or other signals to traffic either way. They went home with the intention of returning the next morning to change the truck tire, arriving home at about nine o'clock in the evening.'

At about the time plaintiff's sons were having trouble with the truck and 'parking it for the night,' defendant, who was employed in Topeka, was visiting a friend in Junction City. During the course of the...