Shafer v. State Highway Commission, 37690

• Decision Date: 28 February 1950
• Docket Number: No. 37690,37690
• Citation: 168 Kan. 591,215 P.2d 172
• Parties: SHAFER v. STATE HIGHWAY COMMISSION.
• Court: Kansas Supreme Court

Page 172

215 P.2d 172

168 Kan. 591

SHAFER v. STATE HIGHWAY COMMISSION.

No. 37690.

Supreme Court of Kansas.

Feb. 28, 1950.

Rehearing Granted March 25, 1950.

Syllabus by the Court

1. There is no legal foot-rule by which to measure conditions generally and determine with exact precision whether a condition in a highway constitutes a defect under G.S.1935, 68-419, commonly known as the defective highway statute.

2. Some conditions in a highway may be so patently dangerous as to clearly constitute a defect while others may be so trifling as to be clearly outside the purview of the statute.

3. It is the policy of courts to handle each case separately and to either include it in or exclude it from the operation of the statute. Where the circumstances are such that an alleged defect cannot be excluded from the operation of the statute as a matter of law it presents a jury question.

4. The record in an action by a passenger on a motorcycle to recover damages resulting from an alleged defect in a state highway examined, considered and held: (1) There was no evidence the motorcycle struck a 'chuckhole' found to exist in the roadway; (2) the question whether the existence of such a hole in a black-top surface, as found by the jury, constitutes a defect within the purview of the statute, is not before us; and (3) the general depression in the surface of the roadway of three and one half to four inches in its deepest place, separate and apart from the chuckhole, did not constitute a defect within the purview of the statute.

Henry L. Daniels, Topeka, argued the cause, and Stanley Taylor, Topeka, attorney for the state highway commission, and C. C. Linley, Cimarron, were with him on the briefs for appellant.

James A. Williams, Dodge City, argued the cause, and Carl Van Riper, C. W. Hughes, Jack G. Voshell, and J. J. Mangan, Dodge City, were with him on the briefs for appellee.

WEDELL, Justice.

This action was instituted pursuant to what is commonly known as the defective highway statute, G.S.1935, 68-419. Plaintiff prevailed and the state highway commission has appealed.

Appellant assigns ten specifications of error. As examination of the record convinces us most of them are without substantial merit. Nothing would be added to our body of the law on the subjects involved by a detailed treatment of all the alleged errors. Following a brief statement pertaining to appellee's journey we shall go directly to the vital issue in the case. It pertains to the nature of the defect alleged in the petition, what the jury found it to be and whether the injury was caused by a defect within the purview of the statute.

Appellee was a boy about eighteen years of age. He and his brother, Virgil Dean Shafer, were making a trip together on the latter's motorcycle from Lacon, Illinois, to Tuscon, Arizona, making stops on the route to visit relatives. Virgil Dean was seeking employment in a warmer climate. The vehicle was equipped with a buddy seat to carry a passenger in addition to the driver. The seat was standard equipment such as made by the manufacturers of motorcycles. It was approximately two feet to thirty inches in length and was shaped so the driver could sit on the front part and the passenger could sit behind him comfortably. The handles reached to the back where the passenger could hold on to them. The motorcycle also had a separate footrest for the passenger in addition to the floor boards for the driver's feet. Regular saddle bags were attached to the vehicle. In the back part of it behind the passenger a carrier was fastened. A little platform, the size of a suitcase, was bolted to the carrier, in which the boys had strapped a suitcase containing clothing. Appellee thought the suitcase weighed approximately fifty to sixty pounds. He thought it might have weighed seventy pounds.

The driver was killed and the passenger, appellee, sustained serious injuries.

The pertinent portion of the petition alleged:

'That at a point approximately two and one-half (2 1/2) miles West of the City of Cimarron, in Gray County, Kansas, said U. S. Highway 50 South slopes downward in a Westerly direction from the brow of a low rise or grade for a distance of approximately three hundred (300) yards to a point where said Highway is crossed by a culvert or bridge which is a part of said Highway system; that said Highway rises on a slight up-grade to the West of said culvert or bridge. That at the point in question, said Highway is surfaced with an oil coating or mat, commonly called 'black-top.' That on the 16th day of June, 1947, and for more than a week prior thereto, a defect existed in said Highway immediately adjacent to the West side of said culvert or bridge; that said defect consisted of a hole in said Highway which was four (4) to eight (8) inches in depth, was approximately fourteen (14) feet long extending from the North side of the oil mat of said Highway past the center line thereof and over into the South part thereof, was approximately six (6) to eight (8) feet wide from East to West, and that the East side of said hole was immediately adjacent to the West edge or side of said bridge or culvert; that the sides of said hole were almost perpendicular. That at the times mentioned herein there were no flags, flares or other warning devices placed about said defect by Defendants which would in any way warn travelers upon said Highway of the danger surrounding said defect.

'4. That at approximately 12:30 p. m. on said 16th day of June, 1947, the Plaintiff and his brother, Virgil Dean Shafer, were riding a motorcycle in a Westerly direction on said U. S. Highway 50 South, West of Cimarron, Gray County, Kansas. That said Virgil Dean Shafer was the owner, driver and operator of said motorcycle, and that Plaintiff was riding behind him on it. That said Highway between said City of Cimarron and the afore-mentioned defect was relatively smooth, and that said Virgil Dean Shafer was driving said motorcycle in a careful and prudent manner at a reasonable rate of speed, to wit: fifty to fifty-five (50-55) miles per hour. That without any warning said motorcycle struck the afore-mentioned hole and defect in said Highway, adjacent to said culvert or bridge, and said motorcycle was thrown violently into the air and out of the control of its driver; that said Virgil Dean Shafer struggled to maintain control thereof but that finally said motorcycle went into the ditch along the North side of said Highway and overturned. That Plaintiff was thrown from said motorcycle and struck the ground in said ditch with great force and violence and sustained the injuries hereinafter complained of.

'5. That said defect in said Highway was the sole, immediate, and proximate cause of said motorcycle going out of control, and of the resultant injuries to Plaintiff. That there were no warning devices about said defect, and that the same was not easily discernible to travelers upon the Highway.'

The jury answered certain questions as follows:

'1. Q. Do you find that a defect as defined in the Court's instructions existed on the highway at the time and place of plaintiff's accident? A. Yes.

'2. Q. If you answer question No. 1 in the affirmative describe fully and in detail such defect or defective condition. A. Depression in roadway 18 feet East by West--20 feet North and South with chuck hole approximately 3 1/2 or 4 inches deep by 30 inches across.

'3. Q. If you answer question No. 1 in the affirmative do you find that the Director of Highways, 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 had five days' actual notice of such defect? A. Yes.

'4. Q. If you answer the foregoing question in the affirmative then state the name of the person or persons who had such actual five days' notice? A. Barkley, Reynolds, Moore.

'5. Q. Do you find that plaintiff and his brother, Virgil Dean Shafer, were engaged in a joint enterprise or joint venture as defined in the court's instructions at the time and place of the accident herein? A. No.

'6. Q. If you answer question number 5 in the affirmative do you find plaintiff's brother guilty of any act or acts of negligence? A. _____.

'7. Q. If you answer question number 6 in the affirmative, state the acts which you find constituted negligence on the part of Virgil Dean Shafter. A. _____.

'8. Q. What do you find to be the proximate and direct cause of the accident? A. Defect in surface of the roadway.

'9. Q. What do you find to be the speed of the motorcycle upon which plaintiff was riding immediately prior to the accident? A. 60 miles per hour.

'10. Q. If you answer both questions Nos. 1 and 5 in the affirmative then state if there remained a sufficient portion of the traveled roadway over which plaintiff's brother with reasonable care could have safely operated said motorcycle? A. _____.

'11. Q. Was the plaintiff guilty of negligence at the time and place of the accident? A. No.

'12. Q. If you answer question No. 11 in the affirmative state specifically such act or acts of negligence. A. _____.'

Answer No. 2 embraces two separate and distinct things. One is the depression in the roadway. The other is a chuckhole. It will be observed the finding did not state how deep the depression was or where the chuckhole was located in the roadway. There was evidence of broken areas in the pavement along the north side of the highway both east and west of the culvert which were thirty inches in diameter; that in such areas the surface was broken up, crumbled, loose but in place and also that it was not in place; that within such broken area it was rough in the bottom and the sides were jagged.

A similar condition existed on the extreme south side of the road. Some of the witnesses referred to both the north and south places as broken and crumbled areas and others referred to them...