Watson v. Travelers Mut. Cas. Co.

Citation73 P.2d 64,146 Kan. 623
Decision Date06 November 1937
Docket Number33478.
CourtUnited States State Supreme Court of Kansas

Syllabus by the Court.

In action for wrongful death of motorist fatally injured when his automobile crashed into rear end of loaded truck standing after nightfall on public highway, evidence tending to show that truck was not properly equipped with lights and that its left rear corner extended over black line dividing the two lanes of traffic sustained verdict finding truck driver guilty of negligence.

In action for death of motorist fatally injured when his automobile crashed into rear of heavily loaded truck standing after nightfall on public highway, under evidence that there were no obstructions on highway to prevent motorist from seeing truck for half a mile, that night was clear, that the headlights and brakes of motorist's automobile were in good order, that its headlights cast a beam of 350 feet ahead, and that automobile could have been stopped in 108 feet if it had been traveling 60 miles per hour, contributory negligence of motorist was for jury.

It is negligence for a motorist to drive his automobile at night in such manner that he cannot stop it in time to avoid collision with an object within distance that his headlights will reveal.

Where property loss is in excess of insurance collectible thereon the insured is "proper party" to bring action against the wrongdoer, and he is accountable to insurer as trustee and must proportionally reimburse it out of whatever judgment is recovered (Gen.St.1935, 60-401).

Where insured carried $50 deductible collision policy on automobile and where his administratrix had made settlement with insurer for agreed value of automobile less $50, the administratrix was "proper party" to sue for value of automobile (Gen.St.1935, 60-401).

In an action in behalf of a widow and minor children for the alleged wrongful death of their husband and father who was killed when his automobile crashed into the rear of a heavily loaded truck standing after nightfall on a public highway the record examined, and held: (1) The evidence of the truck driver's negligence was sufficient to sustain the verdict. (2) The facts showing contributory negligence on the part of the deceased were not so clearly established as to require the trial court to give an instructed verdict for defendant. (3) Under the circumstances stated in the opinion plaintiff was the proper party to sue for the value of the automobile although she had collected insurance for part of the loss and damage thereto.

Appeal from District Court, McPherson County; John G. Somers, Judge.

Action by Flotilla Watson, administratrix of the estate of A. A Watson, deceased, against the Travelers Mutual Casualty Company. From an adverse judgment, defendant appeals.

DAWSON C. J., and THIELE and WEDELL, JJ., dissenting in part.

C. W. Burch, B. I. Litowich, La Rue Royce, L. E. Clevenger, E. S. Hampton, and R. E. Haggart, all of Salina, for appellant.

Evart Mills, of McPherson, for appellee.

DAWSON Chief Justice.

This is an appeal from a judgment awarding damages to plaintiff for the death of her husband who was killed by driving his automobile into the rear end of a heavily loaded truck on a public highway.

The facts which the jury chose to believe were substantially these:

One Ed. T. Kelley was the owner of a 2-ton truck. He was engaged in hauling salt from Kanopolis to Salina. Highway No. 40 is paved from Ellsworth eastward to the width of 20 feet with a black line in the center to indicate its two lanes of traffic.

On January 3, 1936, Kelley loaded his truck with 4 1/2 tons of salt at Kanopolis, drove north for 3 or 4 miles to highway No. 40 and proceeded eastward thereon. About 4 miles east of the point where he had turned into highway No. 40 the road rises gently for a distance of 600 feet. West of this rise, there is a considerable distance on the highway which is open to the view of persons traveling eastward. When Kelley was about half way up this gentle slope he stopped his truck for five minutes. It was then after dark, and certain lights on Kelley's truck were seen by a farmer and his wife,witnesses, who resided a point about 400 feet northeast of where the truck was standing. About that time, these two witnesses saw an automobile coming from the west with its headlights burning. This automobile was being driven by plaintiff's husband, A. A. Watson. It crashed into the rear of Kelley's truck, swung around it to the left, and came to a standstill a short distance from the front end of the truck, with Watson dead in its wreckage.

Plaintiff brought this action against Kelley's insurance carrier, defendant herein, charging negligence on the part of Kelley as follows:

The truck was standing on the highway facing slightly southeastward so that its left rear corner extended over the black line dividing the two lanes of traffic. The headlights and dimmers of the truck were turned off, and only the front clearance lights and the left rear clearance light were burning; the rear of the truck had no reflector; and no warning signs, flags, flares, or lights had been placed to warn traffic coming from the west. The one rear clearance light was attached in front of a 2-inch brace on the body of the truck so that it could not readily be seen by one approaching from the rear when the truck was standing angularly to its proper lane of traffic and facing southeast. The body of the truck was about 4 feet above the pavement and was painted a dull red color and indistinguishable from the pavement in the nighttime.

The petition also alleged:

"That on account of the height of the body of the said truck from the pavement, the color of the said body, the lack of proper lights, the lack of flares or other warning signals to the rear of the said truck, the fog along the said ravine, and the fact that the said truck was parked in a traffic lane on a hillside at night, the said A. A. Watson could not see the said truck until within a few feet of it. That as soon as the said A. A. Watson could see the said truck he immediately turned to go around it on the left, but that on account of the position on the highway in which the said truck was stopped, the left rear corner of the said truck extended over the black line dividing the lanes sufficiently for the said A. A. Watson to hit it with his automobile at a point just in front of his right front door. That the force of the collision was sufficient to tear the entire right hand side off the body of his automobile, but that his automobile went on around the said truck and came to a stop approximately four feet in front of the truck, cross ways in the road and in an upright position. That in the said collision the said A. A. Watson was instantly killed and his automobile completely wrecked. ***
"That the negligence of the said Ed. T. Kelley, as hereinbefore alleged, is the sole and proximate cause of the death of A. A. Watson and the destruction of his said automobile."

The petition also contained a count in damages for the demolition of the Watson automobile.

Defendant's answer contained a general denial and a plea of Watson's contributory negligence.

The cause was tried before a jury which returned a general verdict for plaintiff for $3,800, and itemized it thus: For the death of Watson $3,500; for the damage to the Watson car $300.

Motions to set aside the verdict covering the damage to the automobile and to grant a new trial on all the usual grounds were overruled, and judgment was entered for plaintiff.

Defendant appeals, contending that no negligence was shown and that contributory negligence was so clearly established that an instructed verdict should have been given. A third contention relates to misjoinder in the matter of damages to the Watson automobile which will be noted later.

Touching the question of Kelley's negligence, there was testimony to support our summarized statement of the facts, and, since the jury and the trial court chose to give it credence, it is useless to give space to defendant's evidence which tended to show that the Kelley truck was properly equipped with headlights, taillights, and clearance lights, which had been inspected before Kelley started from Kanopolis, and that Kelley "couldn't have gotten through the port of entries" if they had not been properly set, and that they were inspected "each and every time" he passed through a port of entry; that all those lights were burning; that the Kelley truck was not standing on the highway but was slowly moving up the grade with its heavy load when the Watson car ran into it from the rear. Neither is it of present consequence that defendant's evidence which the jury did not believe tended to show that shortly before the fatal accident one of the headlights on Watson's automobile was not burning and that the sheriff had ordered him to go to a repair shop and get his lights fixed and that he disregarded that admonition; nor is it now of any consequence that defendant's evidence tended to show that the Watson car was being driven at "a terrible speed," or "about 60 miles" per hour shortly before the fatal accident. On the question whether there was sufficient evidence to take the controverted issue of the truck driver's negligence to the jury this court is of one accord and hold that it was a jury question.

Touching the question whether the contributory negligence of the deceased was so clearly established that the trial court should have ruled on it as a matter of law, the evidence was to this effect:

There were no obstructions on the highway to prevent Watson from seeing the truck for a half mile or more before he reached the point of collision. The night was clear,...

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