Shafer v. State Highway Commission, 37690

• Decision Date: 10 June 1950
• Docket Number: No. 37690,37690
• Parties: SHAFER v. STATE HIGHWAY COMMISSION.
• Court: Kansas Supreme Court

Page 448

219 P.2d 448

169 Kan. 264

SHAFER v. STATE HIGHWAY COMMISSION.

No. 37690.

Supreme Court of Kansas.

June 10, 1950.

Syllabus by the Court.

The record in an action to recover damages for personal injuries sustained by a guest on a motorcycle and predicated on the theory the proximate cause of the injuries was a defective highway, examined, considered and held: (1) Whether the highway was defective was a jury question under the evidence in this case; (2) the finding of the jury with respect to the total nature of the defect is indivisible, in harmony with the general verdict and neither of them can be disturbed on appeal; and (3) the question of plaintiff's contributory negligence was properly submitted to the jury and its finding must stand.

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

James A. Williams, of Dodge City, argued the cause, and C. W. Hughes, Jack G. Voshell, and J. J. Mangan, all of Dodge City, were on the briefs, for appellee.

The opinion of the court was delivered by

WEDELL, Justice.

The original opinion in this case appears as Shafer v. State Highway Commission, 168 Kan. 591, 215 P.2d 172.

Plaintiff obtained a judgment in a damage action involving our defective highway statute. G.S.1935, 68-419. This court reversed the judgment. The nature of the action, a general summary of the material facts then presented and the contentions of the respective parties are fully set forth in the original opinion and are hereby referred to without repetition.

Only two other factors are to be considered on this rehearing. They pertain to additional evidence on the question of what constituted the alleged defect and whether such defect occasioned the injuries complained of. A rehearing was granted to appellee on a showing material evidence in support of the former judgment was not included in the abstracts originally presented to this court, the absence of which affected this court's decision. The absence of certain evidence now presented did affect our decision. The findings of the jury fully set forth in the former opinion included question and answer No. 2, which reads: '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 hold approximately 3 1/2 or 4 inches deep by 30 inches across." 168 Kan. at page 594, 215 P.2d at page 174. (Our italics.)

In the former opinion that court said: 'A search of the record discloses no evidence the driver of the motorcycle struck the chuckhole. We, therefore, need not determine whether such a chuckhole in a blacktop road constitutes a defect within the purview of G.S.1935, 68-419.' 168 Kan. at page 595, 215 P.2d at page 175.

In view of that situation this court proceeded to consider and determine only whether the depression without the chuckhole constituted a defect within the purview of the defective highway statute and concluded it did not. In the supplemental testimony furnished to this court by appellee in support of his petition for rehearing there is testimony indicating the motorcycle struck one of the chuckholes located in the tracks of the traveled portion of the road.

We would not be inclined to consider the evidence now presented to this court except for the fact appellant did not originally contend in its brief the motorcycle did not run into the chuckhole. It appears that in view of appellant's failure to so contend appellee did not abstract the testimony showing the motorcycle did strike the chuckhole. The absence of such evidence in the former abstracts was first noticed when this court on oral argument of the case directed attention to the fact the abstracts did not appear to show the motorcycle struck the chuckhole. When that occurred counsel for appellee promptly should have asked leave to supply the testimony instead of permitting this court to decide the appeal without it. We are considering the supplemental testimony only because failure to do so would deprive a client of having a judgment in his favor fairly reviewed.

Having concluded to reconsider the appeal with the supplemental evidence we shall determine whether the condition constituted a defect in the highway. In doing so we are now confronted with the question whether the condition of the highway, namely, the depression, or sunken place, three and one half to four inches deep, as shown by the evidence analyzed in our former opinion, when combined with a chuckhole also three and one half to four inches deep located in the depression and in the tracks of the traveled portion of the road, constituted a defect within the meaning of the statute.

The jury apparently intended to say the two conditions combined constituted the defect. In finding No. 2, previously...