Womochil v. List & Clark Const. Co.

• Decision Date: 04 June 1932
• Docket Number: 30640.
• Citation: 11 P.2d 731,135 Kan. 695
• Parties: WOMOCHIL v. LIST & CLARK CONST. CO.
• Court: Kansas Supreme Court

11 P.2d 731

135 Kan. 695

WOMOCHIL v. LIST & CLARK CONST. CO.

No. 30640.

Supreme Court of Kansas

June 4, 1932

Syllabus by the Court.

Contributory negligence of motorist driving into excavation, where construction company had failed to provide statutory lights and warning signs, held for jury.

In an action for damages for injuries sustained by a motorist who drove into an excavation in a highway on a dark and rainy evening, where the defendant who made the excavation had failed to provide the statutory lights and warning signs and where the barricade erected to block the highway was of debatable sufficiency, the evidence examined, and held, that the question of plaintiff's contributory negligence was one for the jury's consideration and not determinable as a matter of law.

Appeal from District Court, Dickinson County; Cassius M. Clark Judge.

Action by Howard Womochil against the List & Clark Construction Company. Judgment for plaintiff, and defendant appeals.

BURCH J., dissenting.

T. M Lillard, Bruce Hurd, and O. B. Eidson, all of Topeka, and Watson, Ess, Groner, Barnett & Whittaker, all of Kansas City Mo., for appellant.

W. H. Carpenter and W. R. Carpenter, both of Marion, for appellee.

DAWSON J.

This was an action for damages for injuries sustained by plaintiff and caused by the alleged negligence of defendant through its failure to put up sufficient warning lights and signs to apprise motorists of an excavation it had made on the public highway.

On the afternoon of April 8, 1931, defendant made an excavation on highway No. 15 in Dickinson county for the purpose of constructing a culvert. The excavation extended the full width of the north and south road, and was four to six feet deep and seven or eight feet wide. That evening defendant placed a barricade on the highway about 45 feet south of the excavation and a similar barricade about the same distance north of it. Each barricade consisted of a cross made of 2x4 scantling standing upright in the middle of the road and two 2x6 planks which were laid across the road. In the center of the road one end of each plank rested in the cross made of the scantling, and together these planks formed an obtuse angle of a triangle whose base was the width of the traveled part of the road. Defendant did not place on the road any other warning signs or lights, nor did it set any mark to indicate the temporary detour necessitated while the culvert was being constructed.

About 8 o'clock the same evening plaintiff drove northward over this highway in a Ford roadster at a speed which he estimated at 30 to 35 miles an hour. He testified that he could stop his car in 75 feet when traveling at that speed. He also testified that his auto lights were burning and that they would permit him to see objects for a distance of 50 feet ahead of him--"a little further, maybe." The evening was dark and rainy, and he did not see the barricade as he approached the excavation from the south; his car struck it and his lights were extinguished; he drove into the excavation and sustained injuries to himself and damages to his car.

This lawsuit followed. The main defense of present concern was plaintiff's contributory negligence. At the trial, after plaintiff rested, defendant's demurrer to the evidence was sustained.

Later and during the same term plaintiff moved to set aside the judgment, which motion was sustained. The court said:

"The demurrer was sustained on the theory that the plaintiff's evidence showed facts which as a matter of law constituted contributory negligence. It was upon the theory that the barrier on the highway could have been seen by the driver of the automobile, and had he been driving at such speed that his car could have been stopped within the range

of his vision, he could have avoided the collision.

"Had the driver seen the obstruction a different question would be presented, but it was not as a matter of law negligence on his part to fail to observe the barrier"--citing and quoting from Water Co. v. Whiting, 58 Kan. 639, 50 P. 877; 29 C. J. 699, 700; Morehouse v. City of Everett, 141 Wash. 399, 252 P. 157, 58 A.L.R. 1482; 45 C. J. 954.

"The court is of the opinion that the matter of contributory negligence of the plaintiff should have been submitted to the jury and the motion to set aside the judgment should be sustained. It is so ordered."

The journal entry reads: "And now on this 9th day of November, 1931, and at the same term of said court, the court finds that the motion of said plaintiff to set aside said judgment should be, and the same is hereby sustained, and said judgment heretofore rendered in favor of said ...