Winfough v. Tri-State Ins. Co.

• Citation: 297 P.2d 159,179 Kan. 525
• Decision Date: 05 May 1956
• Docket Number: No. 40029,TRI-STATE,40029
• Parties: Bernard O. WINFOUGH, Appellant, v.INSURANCE COMPANY, a Corporation; Emile Truhlar, J. L. Chew and Charlotte Chew, d/b/a C & S Well Service Company, a Partnership; Richard Stecklein; Anton J. Klaus, d/b/a Anton J. Klaus Truck Service, Appellees.
• Court: United States State Supreme Court of Kansas

Page 159

297 P.2d 159

179 Kan. 525

Bernard O. WINFOUGH, Appellant, v. TRI-STATE INSURANCE COMPANY, a Corporation; Emile Truhlar,

J. L. Chew and Charlotte Chew, d/b/a C & S Well Service

Company, a Partnership; Richard Stecklein; Anton J. Klaus,

d/b/a Anton J. Klaus Truck Service, Appellees.

No. 40029.

Supreme Court of Kansas.

May 5, 1956.

Syllabus by the Court

1. An operator of a motor vehicle upon a public highway has the right to assume that others using the highway will obey the law, and until he has knowledge to the contrary, he is not guilty of negligence in proceeding.

2. The general rule is that the operator of a motor vehicle is required to articulate his speed with his ability to stop within the range of his vision, and not to strike or collide with obstructions or other vehicles in his lane of traffic, but there are exceptions to that rule arising out of a sudden change in the operator's situation but not caused by his own failure or neglect, such as blinding lights of oncoming cars, or changes in grade, causing the obstruction to be hidden.

3. As a general rule an operator of a motor vehicle, otherwise obeying the law, who is confronted with a sudden emergency and who, because of want of time in which to form a judgment, acts according to his best judgment but omits to act in a most judicious manner, is not guilty of negligence.

4. The record examined in an action to recover damages for injuries sustained arising from the operation of three motor vehicles, and held, that the trial court did not err in sustaining the demurrer to the petition filed by the group of defendants identified in the opinion as Stecklein.

5. The record further examined, and held, that the trial court erred in sustaining the demurrer to the petition filed by the group of defendants identified in the opinion as Truhlar.

Stanley Krysl, Stockton, argued the cause, and Arthur C. Hodgson, Lyons, and D. A. Hindman, Stockton, were with him on the briefs, for appellant.

Robert Y. Jones, Hutchinson, argued the cause, and Roy C. Davis, Frank S. Hodge, Eugene A. White, and H. Newlin Reynolds, Hutchinson, were with him on the briefs, for appellees Richard Stecklein, Anton J. Klaus, d. b. a. Anton J. Klaus Truck Service, and Tri-State Ins. Co.

Donald R. Newkirk, Wichita, argued the cause, and Howard T. Fleeson, Homer V. Gooing, Wayne Coulson, Paul R. Kitch, Dale M. Stucky, Robert J. Hill, Gerrit Wormhoudt, and Theodore C. Geisert, Wichita, were with him on the briefs, for appellees Emile Truhlar, J. L. Chew and Charlotte Chew, d. b. a. C & S Well Service Co.

THIELE, Justice.

This was an action in which plaintiff sought to recover damages arising from the operation of three motor vehicles as later set forth. Demurrers of the defendants to his amended petition as amended were sustained and he appeals.

On October 9, 1954, plaintiff filed his amended petition and as a result of defendants' motions, on February 26, 1955, he filed amendments thereto. For our purposes, we shall refer to his pleadings as the petition.

Under the allegations of the petition there are two groups of defendants, one group is J. L. Chew and Charlotte Chew, partners doing business as the C & S Well Service Company, who owned a truck being driven in the course of his employment by their agent, Emile Truhlar, and this group is hereafter referred to as Truhlar. The other group is Anton J. Klaus doing business as Anton J. Klaus Truck Service, who owned a truck driven in the course of his employment by their agent Richard Stecklein. This truck was operated on the highways of Kansas pursuant to a permit from the State Corporation Commission and was covered by a policy of insurance issued by Tri-State Insurance Company. This second group is hereafter referred to as Stecklein. The further allegations of the petition are that on December 16, 1952, at about 6:45 p. m. and more than one-half hour after sunset plaintiff was driving his automobile north on U. S. Highway 183 which was an improved blacktop highway, the traveled portion of which was twenty-seven and one-half feet in width; that his vehicle was in good mechanical condition with brakes in good working order and equipped with good headlights which were lighted at the time, and that he was driving at a speed of fifty miles per hour; that unknown to plaintiff, Truhlar had negligently parked and left his truck unattended and unlighted on the east half of the traveled portion of the highway; that the truck was not equipped with any visible red light on the rear thereof, nor any visible reflectors on the rear thereof, nor were there any flares, in violation of G.S. 1949, 8-581 and 8-586; that the truck was about eight feet in width and so parked there was not a clear and unobstructed width of twenty feet of such part of the highway, opposite the parked truck, left for the free passage of other vehicles, nor was there a clear view of the truck from a distance of two hundred feet to the south, in violation of G.S. 1949, 8-570. It was further alleged that the parked truck was not readily visible from the rear; that it had a bed with sides about an inch and a half wide and eighteen inches high and the rear was of dark and dirty color all of which tended to make it invisible, and:

'That as the vehicle which this plaintiff was driving approached the point on U. S. Highway 183 approximately three (3) miles South of Stockton, Kansas, it came over the crest of a hill South of said parked truck, the exact distance from the crest of the hill to the parked truck being unknown to the plaintiff, but believed to be approximately 300 to 400 feet; that as plaintiff topped the crest of this hill he noticed oncoming bright lights, believed by plaintiff to be approximately 900 to 1000 feet north of plaintiff's automobile; when plaintiff had travelled approximately 75 to 100 feet North down the highway, he further noticed a vehicle in his lane of traffic which appeared to be in motion; that plaintiff decreased his speed to approximately 45 miles per hour to allow the vehicle with bright lights to pass and when the oncoming vehicle, to the best of the knowledge and belief of plaintiff was approximately 300 to 350 feet North of plaintiff's vehicle and plaintiff was approximately 125 to 150 feet South of the parked vehicle, said oncoming vehicle dimmed its lights, and plaintiff observed for the first time that the vehicle in his lane of traffic was not moving and to avoid striking such parked vehicle plaintiff pulled sharply to the left to go around such parked vehicle and plaintiff did get around said parked vehicle but in getting back to the right lane of traffic was struck in the left side of his car by the vehicle which had been approaching from the North which was a 1951 Ford Semi-Truck driven by Richard Stecklein of Hays, Kansas. Said collision caused plaintiff to lose control of his automobile, causing it to skid into the ditch running along the east side of said highway and resulting in the personal injuries to plaintiff and damages to plaintiff's automobile, as hereinafter stated.'

Plaintiff then alleged that because there were no lights or reflectors on the rear of the parked truck and because of its shape and color and because it was parked in the center of plaintiff's lane of traffic, it was impossible for plaintiff upon first sighting the truck to immediately ascertain that the truck was parked and not moving down the highway. He charged Stecklein with being negligent in failing to have his truck under control, in failing to apply his brakes and to stop when he knew a collision was imminent, in failing to drive to his right as far as possible in order to give plaintiff clearance to pass the parked truck, in operating at an excessive rate of speed 'the exact speed being unknown to plaintiff', in failing to keep a proper lookout and in failing to dim his lights. Plaintiff further alleged that as the result of the acts of negligence he suffered injuries and property damages and he prayed to recover therefor.

Each group of defendants demurred on the ground that facts sufficient to constitute a cause of action were not stated. These demurrers were sustained, but the record does not disclose whether the trial court ruled that the facts alleged failed to disclose negligence of either group of defendants, or that they did disclose that plaintiff was guilty of negligence which was the proximate cause of his injuries and damages. In due time plaintiff perfected his appeal to this court where he specifies the rulings as error.

Appellant's argument that the trial court...