Trezise v. Kansas State Highway Commission
| Decision Date | 09 December 1939 |
| Docket Number | 34453. |
| Citation | 96 P.2d 637,150 Kan. 845 |
| Parties | TREZISE v. KANSAS STATE HIGHWAY COMMISSION. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
In reviewing ruling on demurrer to evidence, court considers evidence in light most favorable to party adducing it, and all inferences are resolved in his favor.
In reviewing ruling on demurrer to evidence of plaintiff evidence is considered as true, unfavorable parts are disregarded, contradictions and differences between direct and cross examination are not weighed, and, if there is any evidence sustaining plaintiff's case, demurrer must be overruled.
In action for damages sustained when plaintiff's automobile went into creek into which bridge on state highway had fallen a few minutes before, evidence that complaint in regard to defect in bridge had been made several months before to state highway patrolman and that an inspection at that time would have shown several defects was sufficient to make a prima facie case against state highway commission. Gen.St.1935 68-419.
1. The general rule is that where a demurrer is interposed to plaintiff's evidence, the court must consider all of the evidence as true and in the light most favorable to the plaintiff, all inferences being resolved in plaintiff's favor; unfavorable parts must be disregarded, contradictions and any differences between direct and cross examination must not be weighed, and if when so considered there is any evidence which sustains the cause of action, the demurrer must be overruled.
2. The record in an action to recover damages sustained on an alleged defective highway bridge examined, and held that plaintiff's evidence made a prima facie case and that the trial court erred in sustaining defendant's demurrer.
Appeal from District Court, Pottawatomie County; Lloyd Morris Judge.
Action by Ruben Trezise against the Kansas State Highway Commission to recover damages resulting from collapse of bridge on a state highway. From a judgment sustaining a demurrer to plaintiff's evidence, the plaintiff appeals.
Reversed and remanded.
C. E Carroll and A. E. Carroll, both of Alma, for appellant.
Wint Smith, of Salina, Otho Lomax, of Topeka, and Ben Pickering, of Wamego, for appellee.
Plaintiff brought an action to recover damages sustained by reason of an alleged defect in a bridge on a state highway. The trial court sustained a demurrer to his evidence and he appeals.
As far as it is now necessary to notice, plaintiff's petition alleged that about 2:00 o'clock a. m. on July 18, 1937, he was driving his automobile south on highway 63 at a point where a highway bridge crossed Bartlett Creek one-half mile northwest of Emmett, Kansas; that not exceeding thirty minutes prior to the time plaintiff reached the bridge it had collapsed and fallen into the creek; that plaintiff approaching the bridge was not aware of the fact the bridge had fallen until he had reached a point not exceeding five feet north of the bridge; that he was driving in a careful and prudent manner at a rate of speed not to exceed forty miles per hour and was catapulted through space and down to the floor of the collapsed bridge damaging the automobile and permanently injuring the plaintiff. It was further alleged that the injuries and damages sustained by plaintiff were due to the negligence, carelessness and omissions of defendant in that (a) the bridge was worn, rusted and unsafe for ordinary public travel; (b) that a truss rod connecting the top truss rod and the lower steel work of the bridge was completely broken and dangling in the air; (c) that the end truss beam was rusted, bent and broken; (d) that bolts connecting the joint of the top truss beam and end truss beam or batter post were not in place and were gone; (c) holes for bolts were rusted out and broken; (f) truss rods were rusted loose, bent and unfit, and the structure was not anchored to the abutments; (g) the timber in the bridge was old, rotten and broken; (h) bolts and rivets were rusted, loose and weak; (i) there was a broken shoe resting on the northwest corner of the abutment, and (j) the tie block was old and broken. It was further alleged generally that the defendant had more than five days notice and specifically that the patrolman Kennedy had more than five days actual notice of the defective condition of the bridge. There was also appropriate allegation of notice of claim to the highway commission. We need not detail plaintiff's claim of injury and damage, for that is not presently involved.
Defendant's answer denied generally all allegations of the petition not admitted and denied specifically existence of any defect in the bridge. Defendant admitted among other things the highway was a part of the state system of roads and that notice of plaintiff's claim had been filed, and denied specifically the damage was caused by reason of a highway defect. It was alleged that the damages of which plaintiff complained were directly and proximately caused by the negligence of one Carl Eichman who carelessly and negligently drove his automobile into the guard rails and batter post on the northwest corner of the bridge, causing the bridge to fall, and through no fault of defendant. At the trial the defendant demurred for the assigned reason the evidence failed to show the requisite five days notice and "wholly fails to show the giving of notice of any particular defect which produced a dangerous condition in said bridge", and that the evidence failed to show "any defect or combination of detects that caused any bridge failure", and that the evidence failed to show any proximate cause. The trial court's ruling sustaining this demurrer is assigned as error.
In considering whether the trial court erred, we shall review the evidence bearing in mind two often stated rules. One is that in considering a demurrer, the court considers the evidence in the light most favorable to the party adducing it, all inferences being resolved in his favor (Fodor v. Interstate Transit Lines, 149 Kan. 174, 86 P.2d 574; Morrison v. Bandt, 149 Kan. 200, 86 P.2d 480); the other that the evidence of the party adducing it shall be considered as true, that unfavorable parts shall be disregarded, contradictions and any differences between direct and cross-examination shall not be weighed, and if there is any evidence which sustains plaintiff's case, the demurrer must be overruled. Parker v. City of Wichita, 150 Kan. 249, 250, 92 P.2d 86, and cases cited.
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