Super v. Township

• Decision Date: 08 February 1913
• Docket Number: 17,926
• Citation: 88 Kan. 698,129 P. 1162
• Parties: CYRUS SUPER, Appellee, v. MODELL TOWNSHIP, Appellant
• Court: Kansas Supreme Court

129 P. 1162

88 Kan. 698

CYRUS SUPER, Appellee, v. MODELL TOWNSHIP, Appellant

No. 17,926

Supreme Court of Kansas

February 8, 1913

Decided January, 1913.

Appeal from Norton district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. AUTOMOBILES--Defective Highway--Bridge Gone--Duty of Driver--Instructions. An automobile was driven over a highway at night into a river at a public crossing from which the bridge had been recently carried away by a flood. There was no barrier or sign of warning, but the driver knew that he was approaching a crossing at which he supposed a bridge was standing. It is held (1) that it was not error to refuse to give an instruction to the effect that the approach to a stream is itself a warning of danger to a person unacquainted with the road, driving an automobile in the night, which requires him to see and know that a bridge is reasonably safe; (2) that an instruction to the effect that the crossing of a stream is an indication that caution is required of the driver in the circumstances stated above is sufficient when given in connection with other instructions stated in the opinion.

2. AUTOMOBILES--Contributory Negligence -- Speed. The question whether a driver was exercising proper care and prudence, taking into consideration all the circumstances and conditions, is one of fact for the jury. It can not be held as matter of law that a speed of twelve to fifteen miles an hour is negligent.

L. H Thompson, and R. W. Hemphill, both of Norton, for the appellant.

H. R. Tillotson, of Lenora, and W. L. Sayers, of Hill City, for the appellee.

OPINION

BENSON, J.:

A judgment was obtained by the appellee against the appellant for $ 800 for damages suffered to person and property caused by a defective highway.

The appellee was driving his automobile upon a public road which crosses the Solomon river. A month before the accident the bridge at this crossing had been washed away by a flood. The appellee was not aware of this fact, and approaching the crossing at ten o'clock in the evening was unable to stop the automobile after he saw the bridge was gone, and it went over the bank, causing injuries for which he seeks to recover. The automobile was properly equipped and lighted. He approached the crossing from the east, traveling westwardly. For some distance from the river the road was practically straight and level, with timber on each side. The township had built a temporary bridge a little distance to the north of the crossing and reached by turning from the road two or three rods east of the crossing. The roadway bore the indications of travel usual upon a way frequently traveled. There were also marks of use in the temporary way from the road at the new bridge. The appellee was an experienced driver and had been traveling in that vicinity during the day, in the course of which he had crossed the river several times at other points. He was watching the road ahead and did not notice the turn to the north. He was traveling at a speed of twelve or fifteen miles an hour. There was a three per cent grade in the approach to the bridge, commencing forty-five feet from the bank. The width of the stream at the top of the banks is forty-five feet. The appellee testified that, supposing he was nearing the river, he slackened speed, but in passing up the grade the lights were thrown upward, casting a shadow, so that he could not see that the bridge was out until the car was at the bank. He found no barrier or obstruction. Evidence on the part of the appellant tended to show that a car such as the one he was driving could be stopped in fifteen feet when running at ten miles an hour, and that there would not be much difference if the speed were fifteen miles an hour.

Error is alleged in refusing requests for instructions. The court...