Thummel v. Kansas State Highway Commission

• Citation: 160 Kan. 532,164 P.2d 72
• Decision Date: 08 December 1945
• Docket Number: 36229.
• Parties: THUMMEL et al. v. KANSAS STATE HIGHWAY COMMISSION.
• Court: United States State Supreme Court of Kansas

164 P.2d 72

160 Kan. 532

THUMMEL et al. v. KANSAS STATE HIGHWAY COMMISSION.

No. 36229.

Supreme Court of Kansas

December 8, 1945

Appeal from District Court, Edwards County; Karl Miller, Judge pro tem.

Appeal from District Court, Edwards County; Karl Miller, Judge pro tem.

Action by Charles B. Thummel and wife against the Kansas State Highway Commission for wrongful death of plaintiffs' daughters in an automobile accident. The case was submitted to the jury, which disagreed. From orders overruling defendant's demurrer to the evidence, as well as its motion for a directed verdict and request for certain instructions, defendant appeals.

BURCH and THIELE, JJ., and HARVEY, C. J., dissenting.

Syllabus by the Court.

1. A state highway may be opened by implication from conditions which would indicate to an ordinarily prudent person that it was available for public use and a safe place to travel.

2. Examination of the record discloses that the plaintiffs' case was not based solely on conjecture and speculation.

3. Whether a defect in a highway caused an accident or whether it was caused by the negligent driving of a third party ordinarily presents a question for determination by a jury.

4. This court will not anticipate what rulings should be made or what instructions should be given in a retrial of a case made necessary by the jury having failed to agree in the first trial.

Otho Lomax, Asst. Atty. Gen., and W. H. Vernon, of Larned (Eldon Wallingford, of New York City, on the brief), for appellant.

John A. Etling, of Kinsley (W. N. Beezley, of Kinsley, on the brief), for appellees.

BURCH Justice.

This is an action for damages for wrongful deaths alleged to have resulted from a defect in a state highway. The jury was unable to agree. The defendant has appealed from orders overruling its demurrer to plaintiffs' evidence, its motion for a directed verdict and its request for certain instructions. Marie Thummel and Georgine Thummel, two young daughters of the plaintiffs, together with two other occupants of an automobile, were drowned in the waters of Coon Creek, near Kinsley, Kansas, on July 9, 1942. The story of the tragedy as it develops for consideration on demurrer follows:

About 10:30 at night Raymond Dvorak and James O'Brien drove to the home of the two girls and in the course of the visit which followed it was suggested that they get into the car drive out somewhere and get some soft drinks. From the Thummel home the car was driven by Raymond Dvorak to a filling station which was located near the east extremity of Kinsley in a triangular piece of ground at the junction of U.S. Highway 50S and a new highway project designated as 50S-24-FA 302 H(5). Hereinafter Highway 50S will be referred to as the highway and the new project will be referred to as the project. The project ran in a northeasterly direction from a point approximately across from the filling station while the highway ran almost straight east. As they rode out of the filling station and onto the highway, the occupants of the car proceeded to the east a little less than a mile on the highway until they must have reached the intersection of the highway and a township road which ran north to a point where the township road intersected the project. It is possible that the four young people stopped on the township road for a short time before proceeding to the intersection but whether they did is not significant.

About nine weeks prior to the calamity there occurred in the vicinity north and east of the city of Kinsley a notoriously destructive flood. As a result thereof the township road had been washed out immediately north of its intersection with the project and the township officials had erected a barricade across the township road immediately north of said intersection but the state highway commission had not erected any barricade on the project so that it was possible to turn off of the township road onto the project and proceed in a southwesterly direction. Apparently the automobile did so. Testimony was introduced showing that at the time the project was in a drivable condition. Its surface was not 'blacktopped' or paved but it appeared to be a good, wide, graded road with two definite lanes of travel available upon its surface.

Nothing was heard of the Thummel girls or their escorts after they left the filling station until the evening of the next day when they all were found drowned in Coon Creek. In order for the automobile to have reached Coon Creek from the intersection hereinbefore referred to it would have been necessary for it to have been driven along the project in the southwesterly direction until it came to a barricade which had been installed about 13 feet northeast of a washout adjacent to the northeast end of the Coon Creek bridge. The barricade had been erected by employees of the state highway commission. The evidence developed that the barricade consisted of a snow fence which extended only part way across the highway so that it was possible to drive the automobile around the right side of the barricade without driving off the shoulder of the highway. The snow fence originally had been painted red but it had become so weather-beaten that it was difficult to distinguish it from the surrounding visibilities. The road beneath it was so similar to the color of the barricade that a motorist might not have detected the presence of the barricade in time to have stopped in the ordinary course of travel before running into it. One witness testified that she could not see it the next evening, even though she knew it was there, until she was within about 15 feet of it. The sheriff, who found the automobile and later the bodies of its occupants in Coon Creek, testified that he found evidence of car tracks to the northeast of the barricade which indicated that the automobile had been driven gradually to the right side of the project beginning at a point some 20 to 25 feet northeast of the barricade and had proceeded from such point past the right end of the barricade and had continued until it reached the precipitous banks of the washout where it ran on into a pool of water which was eight or ten feet deep. When the car was found it was headed in the opposite direction in which it apparently had been going immediately prior to its fall into the water but there was no evidence of the car having been turned around and there was no evidence of tracks of any kind on the other side of the washout.

In addition to evidence of the foregoing, the plaintiffs introduced a stipulation which admitted that in April, 1941 the state highway commission had passed a resolution, pursuant to which a right of way had been acquired for a relocation of a portion of the highway so that eventually the project would be substituted for the highway as a part of Highway 50S. It also was stipulated that a contract had been let by the state highway commission for the earth and culvert work on the project and that such work had been completed and accepted on August 30, 1941 by the state highway commission; that the bridges on the project had been completed and accepted with the exception of the bridge across the Arkansas River which was not accepted until August 15, 1942. The plaintiffs also proved that some of the flood damage which had occurred during the spring of 1942 had been repaired by employees of the state highway commission; that authorized representatives of the commission had knowledge of the defect in the project long in excess of the time required by the applicable statute; that the statutory demand had been made and that the project had been used by the public.

The evidence relative to the use of the project by the public and others requires careful scrutiny because unless a state highway has been opened for travel and there has been extended to the public an inviation, either expressed or implied, to use the highway, then there is no basis for recovery from the state.

The evidence touching upon the question of whether the project was open for travel may be summarized as follows: As before stated, there was no barricade on the township road south of its intersection with the project and there was no barricade immediately west or east of its intersection with the project. The plaintiffs' witness, Fred Lancaster, testified that he could get onto the project through his driveway or at the southwest end of such project, or on the township road intersection with it. He further testified that in 1941 there was a time when he didn't remember seeing a sign at the intersection of the project and the highway immediately east of Kinsley. He was asked the following question and gave the following answer:

'Q. And in the fall of 1941, Mr. Lancaster, did you observe traffic on this new road, would you see other people driving on it? A. Yes, sir; several of them drove that road, a lot of them.'

Fred Fletcher testified:

'Q. Do you recall whether the grade there was well beaten by traffic? A. Well, it was good road.'

Sherman Holland, a witness for the plaintiffs, testified that in the fall of 1941 and in the spring of 1942 he observed some travel on the project. When asked whether the road showed signs of considerable traffic, he replied there was some traffic on it and that the project showed signs of traffic the full width of it. He testified that after September 5, 1941, at which time the Coon Creek bridge was completed, the traffic on the project between the city of Kinsley and the intersection of the township road was by maintenance and construction workers and sightseers.

Fred Fletcher also testified that in the fall of 1941 he traveled the project about every day from his home northeast of Kinsley. He would drive south on the township road...