Towell v. Staley

• Decision Date: 09 March 1946
• Docket Number: 36474.
• Citation: 166 P.2d 699,161 Kan. 127
• Parties: TOWELL v. STALEY.
• Court: Kansas Supreme Court

166 P.2d 699

161 Kan. 127

TOWELL v. STALEY.

No. 36474.

Supreme Court of Kansas

March 9, 1946

Rehearing Denied April 11, 1946.

Appeal from District Court, Lyon County; Jay Sullivan, Judge.

Action by Edison Towell against Kenneth Staley for damages to a motor truck wherein defendant filed a cross-petition. Judgment for plaintiff and defendant appeals.

Syllabus by the Court.

In an action for damages alleged to have been sustained when a truck being driven by plaintiff collided with a truck which defendant was alleged to have left standing on a highway at night without lights, the record is examined and it is held that (a) the plaintiff was not guilty of contributory negligence as a matter of law; (b) the defendant was guilty of actionable negligence; and (c) the negligence of defendant was the proximate cause of the collision.

WEDELL THIELE and HOCH, JJ., dissenting.

Roscoe W. Graves, of Emporia, for appellant.

Milton P. Beach, of Oskaloosa (O. S. Samuel, of Emporia, on the brief), for appellee.

SMITH Justice.

This was an action for damages to plaintiff's truck alleged to have been sustained when the truck in question while being driven by plaintiff collided with the truck of defendant which it was alleged was parked on the right-hand side of the highway in the nighttime without lights. Judgment was for the plaintiff. Defendant has appealed.

The petition alleged that plaintiff was driving his gasoline transport truck in an easterly direction on U.S. Highway No.

50 south, at 2 a. m., and that due to the negligence of defendant plaintiff's truck collided with an International pickup truck owned and operated by defenant that the defendant was guilty of negligence in that he had brought his truck to a stop and left it standing unattended on the highway without displaying lights or other warning devices; that it was standing upon the concrete highway directly in the path of the vehicle operated by plaintiff and plaintiff was unable to see it because of the lights of another vehicle directed toward him and because of no lights or flares on defendant's vehicle. The damage to the plaintiff's truck was itemized and judgment was asked in the amount of $625.32.

Defendant filed an answer and cross-petition. The answer especially denied that defendant was guilty of any negligence in connection with the collision, and made allegations that plaintiff was guilty of gross negligence in that he was driving at an excessive rate of speed and continued to drive at that speed when blinded by the lights of an approaching automobile just prior to the collision, and in not having his truck under control so that he could turn aside and avoid the collision and that this negligence was the proximate cause of the collision.

In the cross-petition the defendant made all the allegations of the answer a part, and then alleged that the plaintiff drove his transport truck into the pickup truck of the defendant on Highway 50 south at approximately 2 a. m.; that defendant's truck was parked on the highway; that all its lights, including the taillight, were on at the time he left the truck and at the time the plaintiff collided therewith. Substantially the same acts of negligence were alleged that were in the answer. Damages to defendant's truck in the amount of $410 were alleged. Judgment was prayed for $410. Defendant's demurrer to plaintiff's evidence and his motion for a new trial were overruled and judgment was entered for the amount of the verdict.

Defendant argues that his demurrer to the evidence of plaintiff should have been sustained. He urges first that the plaintiff's evidence established that he was negligent as a matter of law because he continued to drive his truck down the highway and increased his speed when he was blinded by the bright lights, to which reference has already been made. This will require an examination of the record. If there was any substantial evidence to sustain the cause of action pleaded by plaintiff the demurrer was properly overruled. In examining the question we must indulge all presumptions and draw all inferences from the established facts favorable to the plaintiff. He testified that he was driving in an easterly direction on Highway 50 south on May 2, 1942, about 2 a. m., with his transport truck loaded with gasoline. He approached a bridge about three miles east of Emporia. There was a left turn as one approached this bridge from the west, making a rather sharp angle at the west end of it. He was driving about 30 miles an hour. He saw some headlights on the other side of the bridge and slowed up to see whether the vehicle was coming across the bridge and saw it was parked, so he continued on across. The car on the east side of the bridge was facing him. It was on the opposite lane of travel from that on which he was traveling and facing in the direction from which he was coming, with its lights on. When he passed these headlights he saw another vehicle in front of him about 22 feet from the end of the bridge. It was a pickup truck, was faced in the same direction plaintiff was traveling and was completely in his lane of travel and without lights. He attempted to drive between the two vehicles but caught the back end of the pickup truck with his right front wheel. This broke the hydraulic brake on his truck. He lost control of it and it went into the ditch at the left side of the road and turned over. There was no one in the pickup truck. By the time he had dismounted from his truck the vehicle which had the bright lights crossed the bridge to the west and turned onto a side road to the south. The damages to his truck were $750. He lost $50 worth of gas, had a towing charge of $25 and lost the use of his truck in the amount of $190.

On cross-examination plaintiff testified that he had his lights on and that they were in good condition; that he first saw the lights on the vehicle that was on the opposite side of the road when he was 300 to 400 feet from the bridge; that they were very bright and he could not see anything past them because of these lights except to the sides. When he saw that the vehicle with the lights on was on the other side of the road he increased his speed on account of a grade to the east of the bridge; that he did not see defendant's parked truck until he had passed the blinding lights; that he could not say whether or not he could have seen the taillight on defendant's truck if it had been on; he was going about 35 miles an hour.

On re-direct examination plaintiff testified that when one meets real bright lights on the highway at night he cannot see any objects beyond them but he thought he could have seen the taillight on the parked truck if it had been on.

During plaintiff's cross-examination when he was asked whether if there had been a taillight on the truck he could have seen it, he hesitated to say whether he could or could not and objection of his counsel to the question was sustained. Latter, on re-direct examination he testified as follows:

'Q. Is your vision such even in those cases where they don't dim their lights--you can see cars on the other side? A. It don't make any difference what it is--you meet bright headlights and you can't see objects beyond that set of headlights.

'Q. If a car was traveling in the same traffic lane--in your traffic lane with a tail light--do you think you could see it? A. Yes, I do--if there was a light.

'Q. Found that out from your experience? A. Yes, I think I have driven about enough that I could tell one.'

Later on re-cross-examination by counsel for defendant he testified:

'Q. Mr. Towell, you told me you didn't know whether you could see it or not--now what do you say? A. I have always seen the tail light before when I run up behind a car when I meet another car. I am saying out there--there was no light there.

'Q. Are you saying, or not saying, if that taillight was burning--and as you were blinded with the light--that you could have seen it? A. I think I could have seen it.'

The other evidence introduced by plaintiff was to the effect that the road at this point made a turn toward the northwest that was about 100 to 125 feet long west of the bridge. There was evidence by the defendant to the effect that he had hit a horse on the highway just before he reached the bridge and shortly after he crossed it his truck came to a stop; that he left it with the lights burning and went to telephone to his wife. Defendant introduced some other evidence from which it might have been argued that the car, the lights of which plaintiff saw, was coming from the east and was a pickup truck being driven by plaintiff's wife who had come to the scene of the accident in response to a call. This is not argued by either party and will not be further considered in this opinion.

Defendant argues that the evidence of the plaintiff taken in its entirety brought the case within a long line of previous decisions of this court which deny recovery in instances wherein a driver of an automobile deliberately and knowingly drives into darkness under circumstances which completely obscure his vision of the highway ahead of him and drives at a speed which makes it impossible to avoid striking an object in his lane of traffic after it comes within his range of vision.

A very recent case in which such a rule was applied is that of Frazier v. Cities Service Oil Co., 159 Kan. 655, 157 P.2d 822, in which, among others, the following cases are cited: Chance v. Murry, 143 Kan. 476, 54 P.2d 981; Robinson v. Short, 148 Kan. 134, 79 P.2d 903; Carson v. City of Wichita, 148 Kan. 215, 80 P.2d 1114; Goodman v. Wisby, 152 Kan. 341, 103 P.2d 804; Harrison v. Travelers Mutual Cas. Co., 156 Kan. 492 134 P.2d 681; Curtiss v. Fahle, 157 Kan. 226, 139 P.2d...