Tuer v. Wayland

• Decision Date: 11 January 1930
• Docket Number: 28,995
• Parties: GEORGE L. TUER, Appellee, v. W. C. WAYLAND, Appellant
• Court: Kansas Supreme Court

283 P. 661

129 Kan. 458

GEORGE L. TUER, Appellee, v. W. C. WAYLAND, Appellant

No. 28,995

Supreme Court of Kansas

January 11, 1930

Decided January, 1930.

Appeal from Washington district court; TOM KENNETT, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

HIGHWAYS--Failure to Provide Statutory Warning of Excavation--Contributory Negligence. In an action against a contractor who was building a bridge on a highway to recover damages for injury to an automobile and other property of plaintiff caused, it was alleged, by the negligence of defendant in failing to put up statutory warning signals over an excavation in the highway, it appears that the defendant had placed a pile of poles and brush as a barrier across the traveled part of the highway as a danger signal; that the plaintiff approached the barrier in the nighttime with his headlights burning, at a speed of about twenty-five miles per hour; that he could have seen and did see the barrier when within fifty to sixty feet of it; that he could, with due diligence, have stopped his car within a distance of from twenty to twenty-five feet, but did not do so and then turned his car aside into a ditch at the side of the road, overturning it and causing the injury of which complaint was made. It is held that the special findings of the jury show contributory negligence on the part of the plaintiff and that the judgment should go for defendant notwithstanding the general verdict in favor of the plaintiff.

J. R. Hyland, of Washington, for the appellant.

Edgar Bennett and A. C. Bokelman, both of Washington, for the appellee.

Johnston C. J. Jochems, J., not participating.

OPINION

JOHNSTON, C. J.:

This is an action brought by George L. Tuer to recover damages for injuries to his automobile and certain clothing in the overturning of the automobile caused, it is alleged, by the negligence of the defendant. Damages in the sum of $ 400 were recovered. The defendant has appealed.

The questions involved are, first, the exclusion of evidence that a witness smelled intoxicating liquor on one of the party in the automobile other than the plaintiff. There was nothing to show that plaintiff had been drinking liquor or that he had ever done so. Obviously there was no error in the ruling.

The principal question presented is whether the injury was the result of plaintiff's contributory negligence. There was testimony to the effect that a bridge was being built for the county by the defendant, a contractor, and that there was an excavation across the highway with a narrow detour at the edge of the highway to enable parties to go around the excavation over which the bridge was being built. Near the bridge there had been an ordinary danger sign up until the day before the accident, but it was down at the time the accident occurred. A pile of brush about three or four feet high had been placed on the highway as a barrier, and it extended across the traveled part of the highway. The plaintiff driving north approached the bridge about nine o'clock at night driving at a speed of about twenty-five miles an hour. He had good lights on his automobile and the car was under perfect control. There was a slight downward slope in the road leading towards the bridge. Plaintiff saw the brush pile when he was about 50 to 75 feet from it. He stated that he applied the brakes and turned to the left with a view of going around it and went into the ditch, overturning his car and injuring it as well as the clothing of members of his family. He admits that his wife warned him that there was an obstruction ahead and then he turned to the left and in doing so the car was overturned. He stated that he could have stopped his car within its length, at most within twenty feet. The barricade of brush consisted of poles from three to six inches thick with branches and foliage attached. The leaves thereon had withered to some extent.

The defendant contends that while the law required the contractor to provide warning signs and mark the detour, it is unquestioned that the plaintiff saw the brush-pile barrier which afforded him a warning as effective as statutory signs would have done, and that in failing to stop the car he was guilty of contributory negligence. Plaintiff says that although the barrier was seen by him the brush was dry, the leaves withered, and that the lights of his car shone through it and that it did not constitute a warning. The findings of the jury respecting the questions follow:

"1. How far south of the pile of brush could the plaintiff with reasonable and due diligence have first seen such brush or obstruction? A. About 50 or 60 feet.

"2. Did plaintiff in fact see such pile of brush? A. He claimed he saw some object.

"3. At what rate of speed was the plaintiff driving his automobile immediately prior to his making the turn to the detour? A. About 20 to 25 miles.

"4. In what distance could plaintiff have stopped his car at the speed he was driving when he could with due diligence have seen the pile of brush? A. About 20 to 25 feet.

"5. At what distance could the plaintiff, by the use of the headlights on his car, see to distinguish objects ahead of him upon the highway? A. About 35 or 40 feet.

"6. How far to the north of the detour was the pile of brush? A. About 15 feet.

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