Williams v. Kansas State Highway Commission

• Decision Date: 05 March 1932
• Docket Number: 30340.
• Citation: 134 Kan. 810,8 P.2d 946
• Parties: WILLIAMS v. KANSAS STATE HIGHWAY COMMISSION. [*]
• Court: Kansas Supreme Court

8 P.2d 946

134 Kan. 810

WILLIAMS v. KANSAS STATE HIGHWAY COMMISSION. ^[*]

No. 30340.

Supreme Court of Kansas

March 5, 1932

Syllabus by the Court.

Hole over two feet long, ten inches wide, and five inches deep and hole two feet long, ten inches wide, and four inches deep in state highway, held "defect" within statute making state liable (Rev. St. Supp. 1931, 68--419).

Actual knowledge of defect in highway by persons designated in statute making state liable, for prescribed time, is sufficient notice (Rev. St. Supp. 1931, 68--419).

Highway patrolman's actual knowledge of defects in highway for prescribed time held sufficient notice to make state liable for death of motorist (Rev. St. Supp. 1931, 68--419).

Evidence sustained finding that holes in highway proximately caused motorist's death (Rev. St. Supp. 1931, 68--419).

Statement in instruction that it was unnecessary that jury find defendant had committed all acts of negligence complained of held harmless.

Such statement was harmless because a single ground of negligence was pleaded and court had plainly instructed jury regarding elements necessary to be proven.

1. Certain holes in a state highway described in the opinion are held to be defects under Rev. St. Supp. 1931, 68--419, which provides that the state shall be liable to a person who shall, without contributing negligence, sustain damage by reason of the defect in a state highway, and that an action therefor may be maintained upon notice to any one of several designated officers, agents, and employees who has had five days' notice of the defect prior to the time the damage was sustained.

2. The required notice of the defect need not be in writing, nor need there be any particular formality in giving it. It is enough if the persons designated to whom it is to be given shall have had actual knowledge of the defect the prescribed time.

3. The evidence examined, and held sufficient to sustain the finding that the defect in the highway was the proximate cause of the injury for which a recovery was sought.

4. Instructions about which there is complaint examined, and held to be free from prejudicial error.

Appeal from District Court, Jackson County; Horace T. Phinney Judge.

Action by Lillie Williams against the Kansas State Highway Commission. From a judgment for plaintiff, defendant appeals.

SMITH and HARVEY, JJ., dissenting.

James E. Smith, S.W. Jackson, Wint Smith, and Ralph M. Hope, all of Topeka, for appellant.

Floyd A. Sloan and W. Glenn Hamilton, both of Topeka, and Albert M Cole, of Holton, for appellee.

JOHNSTON C. J.

Lillie Williams brought this action against the state highway commission, to recover damages from the state for the death of her husband caused as alleged by defects in a highway over which he was traveling in an automobile on the night of July 19, 1930. The jury returned a verdict in favor of plaintiff for $2,500, which was approved by the court and judgment accordingly entered. The defendant appeals.

The accident occurred on United States Highway No. 75, a much-traveled road over which about 600 cars pass daily. It was surfaced by sand and gravel, and it appears there were two holes near the top of a hill just south of the city of Holton, down which the automobile was being driven when the accident occurred. One of the two holes was two and one-half feet long, ten inches wide, and five inches deep. The other near it was two feet long, ten inches wide, and four inches deep. The automobile was being driven near the center of the road by one Pritchard with Williams and others in the car, and was going down the hill at a speed of thirty to thirty-five miles an hour, when one of the front wheels of the automobile dropped into a hole which threw the driver to the left, and presently a wheel dropped into the other hole and threw him to the right, causing him to lose control of the car, and after it ran down the hill about 300 feet it turned over, with the result that Lester Williams was killed. The action is brought under the statute, Rev. St. Supp. 1931, 66--419, which authorizes a recovery from the state for any damages resulting from a defect in a state highway if the person injured was without contributing negligence. The recovery is warranted if the director, engineer, or any member of the highway commission or any foreman, patrolman, or other employee in charge of the construction, maintenance, or upkeep of such highway shall have had notice of such defects five days prior to the time when the damage was sustained. The action is authorized to be brought against the state highway commission and must be brought within two years after the injury.

Defendant contends first that the holes mentioned do not constitute defects in the highway within the meaning of the statute, The car was being driven over an improved highway which had been graded, surfaced with sand and gravel, and it constituted a part of the state highway system. It had been constructed and was being maintained by the state highway commission. Under the statute it became the duty of the commission to keep the highway in a reasonably safe condition for public travel. Of course not every slight depression or inequality in the surface of the road would be regarded as a statutory defect, but a hole five inches deep cannot be regarded as a mere inequality or slight depression. When the wheel of an automobile drops into a hole of that depth when going at thirty to thirty-five miles an hour, it necessarily will cause a severe jolt, and when this was instantly followed by a drop into another hole, it would be likely to jar the driver and toss him from one side of the car to the other, and thus account for his losing control of the car. The holes, it appears, were only a few feet apart and respectively four and five inches deep. The drops coming close together necessarily increased the danger and made the plight of the driver of the car more difficult. We have had a number of cases involving the question of what is a defect under the law, one of which is Collins v. State Highway Commission, 134 Kan. 278, 5 P.2d 1106, 1109. There, a shoulder had been built on the edge of the concrete slab, and there was a deep rut on the side of the shoulder. On some occasions it had become necessary for the driver of cars to drive upon the shoulder to avoid a collision where there was a congestion in the traffic. The plaintiff had occasion to use the shoulder and dropped into the rut which resulted in an injury. It was held to be a defect in the highway which justified a recovery of damages. In the decision it was said: "There is no legal foot rule by which to measure conditions generally and determine with precision whether a condition constitutes a defect. Some conditions may be so patently dangerous that a verdict denying defect would be promptly set aside. Other conditions may be so trifling that a verdict of defect would be promptly set aside."

Another case dealing with the question is Watson v. Parker, 113 Kan. 130, 213 P. 1051. In that case there was a ditch covered with weeds on the side of the traveled part of the road which was only thirteen and one-half feet wide, and plaintiff driving an automobile turned off the traveled part to avoid collision with an on-coming car, and his car ran into the ditch which he could not see because it was covered with weeds. The court did not undertake to determine as a matter of law that the ditch was a defect, but under the evidence it was held to be a question of fact for the jury to determine. Here the result of running into the holes appears to have jerked the car from the control of the driver, followed by the overturning of the car and the fatality mentioned.

A condition of a highway which renders it dangerous for the public traveling over it is certainly a defect. The evidence tends so strongly to show that the highway was in a dangerous condition that whether it amounted to a defect under the statute became at least a question for the determination of the jury. The defendant expresses fear that if the state is held liable for such defects, the consequences will be disasterous. It is said that a large part of the improved roads of the state are constructed of sand and gravel and that such depressions and defects are so numerous, especially in dry weather and after heavy rains, as to make maintenance of them well-nigh impossible, and that these conditions should be considered by the court in determining the case. That is a question of policy proper for the consideration of the Legislature and not for the courts except so far as it may aid in the interpretation of the present statute. Our duty is to interpret the statute as it has been enacted.

Another contention is that legal notice of the defect was not given to any of the officers, agents, or employees named in the statute. A notice of five days prior to the time when the damage was sustained is required and may be given to the director of highways,...