Price v. United Telephone Co.

26 P.2d 569, 138 Kan. 416, 1933 Kan. LEXIS 215
CourtSupreme Court of Kansas
DecidedNovember 11, 1933
DocketNo. 31,234; No. 31,235
StatusPublished

This text of 26 P.2d 569 (Price v. United Telephone Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Price v. United Telephone Co., 26 P.2d 569, 138 Kan. 416, 1933 Kan. LEXIS 215 (kan 1933).

Opinion

The opinion of the court was delivered by

Harvey, J.:

These two actions were tried together in the court below and presented together here. The plaintiff, Edna Price, seeks to recover for personal injuries sustained when the car which she [417]*417was driving collided with a telephone pole of the defendant, and both plaintiffs seek to recover for the wrongful death of their daughter in the same casualty. The jury answered special questions and returned verdicts for plaintiffs. Defendant has appealed, and contends, (1) that negligence on its part was not shown, and (2) that the collision of the automobile with the telephone pole was not the proximate cause of the injury. Other questions are argued, but it may not be necessary to discuss them.

The principal facts are not seriously controverted, and may be stated as follows: A township road runs north from the city of Republic. About a mile north of the city it is intersected by an east- and-west county road. For more than twenty years prior to the casualty which gives rise to this lawsuit defendant had maintained and operated a telephone line along the south side of the county road to the intersection from the east where it crossed the road to the north or northwest. Prior to the fall of 1928 the intersection of the two roads above mentioned was the ordinary square intersection of two highways, but in 1928, under the direction of the county engineer, the southeast corner of the intersection was rounded. This was done by first obtaining from the landowner an easement for the new road rounding the corner. Across the right of way thus obtained a roadway was laid out on a curve with a 200-foot radius connecting the township road south of the old intersection with the county road east of it. The old intersection was, of course, left for north-and-south and east-and-west traffic. This left a triangular tract southeast of the old intersection and between that and the new curved road connecting the two highways. One of defendant’s telephone poles was in this triangular tract, and the next one east of that was about the middle of the new curved road. About the time this work was commenced the county engineer called the manager of the telephone company and told him of the work to be done and that there were telephone poles in the way. He replied he would send men to move them. That afternoon he sent men, who moved the pole that was in the new curved road. There was evidence tending to show that the men did not have time that afternoon to move the pole in the triangular tract above mentioned. It is what is spoken of as a “key” pole, the line changing there to the north or northwest, and it being guyed with a guy wire, for which reasons it would take more time to move it. The county engineer [418]*418told the workmen there was no hurry about moving that pole, for the reason that it was not in the traveled portion of the highway. He testified that the men there agreed to move it later. About that time considerable road work was being done in the county. The county engineer made several requests of defendant’s manager to have poles moved, and always received good cooperation and prompt service. The manager of the telephone company testified that he received several requests from the county engineer for the moving of poles, and always complied with them promptly. At the time of the trial of this action, about five years after the work was done on the corner, he had no recollection of any request having been made of him for the removal of this corner pole. It is not contended that a written request was made for the removal of the pole in the triangular area, nor does the evidence show that it was the practice to make requests in writing for the removal of poles for road improvement. No record was kept by the county engineer of what poles he requested moved, and none was kept by defendant’s manager of poles removed at the request of the county engineer. Before the improvement of the corner in 1928 there were ditches, varying perhaps from a foot to a foot and a half deep, extending east and south from the southeast corner of the intersection. At the time the road was improved in 1928 these ditches were filled, or nearly so. The curve was so constructed that the inside of the curve was lower than the outside, where there was a slight ridge of dirt, leaving a drainage for the curved road to the southeast, where there was a culvert which carried the water to one of the ditches along the county road. The triangular area was left practically level, except for the ridge of dirt along the outer edge of the curve, and at the time of the casualty was sparsely covered with grass and weeds, except the corners where they had been rounded somewhat by travel. At the northwest corner of the intersection there was a hedge fence extending north, and another one west, from the corner. These were kept trimmed down for a distance of from forty to fifty feet north and west from the corner, to enable travelers approaching the intersection from the west better to see cars coming from the north, or those approaching from the north to see cars coming from the west.

The intersection was maintained as above described from the fall of 1928 until after September 4, 1931 — the date of the casualty which gives rise to these actions. Frequently within that time inspectors of defendant examined its poles and lines, and knew that [419]*419one of its poles with the guy wire was situated in the triangular area above described. Neither the county engineer who supervised the improvement of the intersection in 1928, nor his successor in office, made any complaint after that work was done about the pole and guy wire remaining where they were.

Plaintiffs lived on a farm about a mile and a quarter north of this intersection and had lived there for nine years. They frequently went to Republic, were familiar with the road and with this intersection, and with the location of defendant’s telephone pole near the southeast corner of the intersection, both before it was improved by the rounding of the southeast corner in 1928 and since that time. The county road at this point was down grade from a point some distance east of the intersection, through it, and west a quarter of a mile or more to a bridge across a creek. From the north to the intersection, for a short distance, the township road was slightly upgrade and from the intersection south was slightly downgrade. On the day of the casualty, shortly after one o’clock in the afternoon, the plaintiff, Edna Price, started to drive from her home to Republic. The car she was driving was owned by plaintiffs, and she had driven it frequently and had been driving cars for more than fifteen years. Her daughter, fourteen years of age, was with her, riding on the seat beside her. As she approached this intersection, some little distance before she reached it and while driving at about thirty miles per hour, she looked to the west for cars or dust from cars approaching. She could sometimes see a cloud of dust better than she could see a car. She saw none and drove on to the intersection, where she slowed down to perhaps fifteen miles an hour. Just after entering the intersection she observed a car coming rapidly from the west, driving about the middle of the highway. Her car was equipped with four-wheel brakes, in good condition, but she thought she did not have time to stop and did not apply her brakes. She turned her car to her left toward the east, and perhaps speeded up a little, hoping to avoid the approaching car. The car coming from the west was driven by a young man, Mr. Madsen. Three other young men were riding in the car with him.

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Cite This Page — Counsel Stack

Bluebook (online)
26 P.2d 569, 138 Kan. 416, 1933 Kan. LEXIS 215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/price-v-united-telephone-co-kan-1933.