Thummel v. Kansas State Highway Commission

164 P.2d 72, 160 Kan. 532, 1945 Kan. LEXIS 211

• Court: Supreme Court of Kansas
• Decided: December 8, 1945
• Docket: No. 36,229
• Status: Published

Opinions

The opinion of the court was delivered by

Burch, J.:

This is an action for damages for wrongful deaths alleged to have resulted from a defect in a state highway. The jury was unable to agree. The defendant has appealed from orders overruling its demurrer to plaintiffs’ evidence, its motion for a directed verdict and its request for certain instructions. Marie Thummel and Georgine Thummel, two young daughters of the plaintiffs, together with two other occupants of an automobile, were drowned in the waters of Coon creek, near Kinsley, Kan., on July 9,1942. The story of the tragedy as it develops for consideration on demurrer follows:

About 10:30 at night Raymond Dvorak and James O’Brien drove to the home of the two girls and in the course of the visit which followed it was suggested that they get into the car, drive out somewhere and get some soft drinks. From the Thummel home the car was driven by Raymond Dvorak to a filling station which was located near the east extremity of Kinsley in a triangular piece of ground at the junction of U. S. Highway 50S and a new highway project designated as 50S-24-FA 302 H (5). Hereinafter Highway 50S will be referred to as the highway and the new project will be referred to as the project. The project ran in a northeasterly direction from a point approximately across from the filling station, while the highway ran almost straight east. As they rode out of the filling station and onto the highway, the occupants of the car proceeded to the east a little less than a mile on the highway until they must have reached the intersection of the highway and a township road which ran north to a point where the township road intersected the project. It is possible that the four young people stopped on the township road for a short time before proceeding to the intersection, but whether they did is not significant.

About nine weeks prior to the calamity there occurred in the vicinity north and east of the city of Kinsley a notoriously destructive flood. As a result thereof the township road had been washed out immediately north of its intersection with the project and the township officials had erected a barricade across the township road immediately north of the intersection, but the state highway commission had not erected any barricade on the project so that it was possible to turn off of the township road onto the project and proceed in a southwesterly direction. Apparently the automobile did so. Testimony was introduced showing that at the time the project was in a drivable condition. Its surface was not “black-topped” or paved but it appeared to' be a good, wide, graded road with two definite lanes of travel available upon its surface.

Nothing was heard of the Thummel girls or their escorts after they left the filling station until the evening of the next day when they all were found drowned in Coon creek. In order for the automobile to have reached Coon creek from the intersection hereinbefore referred to it would have been necessary for it to have been driven along the project in the southwesterly direction until it came to a barricade which had been installed about thirteen feet northeast of a washout adjacent to the northeast end of the Coon creek bridge. The' barricade had been erected by employees of the state highway commission. The evidence developed that the barricade consisted of a snow fence which extended only part way across the highway so that it was possible to drive the automobile around the right side of the barricade without driving off the shoulder of the highway. The snow fence originally had been painted 'red, but it had become so weather-beaten that it was difficult to distinguish it from the surrounding visibilities. The road beneath it was so similar to the color of the barricade that a motorist might not have detected the presence of the barricade in time to have stopped in the ordinary course of travel before running into it. One witness testified that she could not see it the next evening, even though she knew it was there, until she was within about fifteen feet of it. The sheriff, who found the automobile and later the bodies of its occupants in Coon creek, testified that he found evidence of car tracks to the northeast of the barricade which indicated that the automobile had been driven gradually to the right side of the project beginning at a point some twenty to twenty-five feet northeast of the barricade and had proceeded from such point past the right end of the barricade and had continued until it reached the precipitous banks of the washout where it ran on into a pool of water which was eight or ten feet deep. When the car was found it was headed in the opposite direction in which it apparently had been going immediately prior to its fall into the water, but there was no evidence of the car having been turned around and there was no evidence of tracks of any kind on the other side of the washout.

In addition to evidence of the foregoing, the plaintiffs introduced a stipulation which admitted that in April, 1941, the state highway commission had passed a resolution, pursuant to which a right of way had been acquired for a relocation of a portion of the highway so that eventually the project would be substituted for the highway as a part of Highway 50S. It also was stipulated that a contract had been let by the state highway commission for the earth and culvert work on the project and that such work had been completed and accepted on August 30, 1941, by the state highway commission; that the bridges on the project had been completed and accepted with the exception of the bridge across the Arkansas river which was not accepted until August 15, 1942. The plaintiffs also proved that some of the flood damage which had occurred during the spring of 1942 had been repaired by employees of the state highway commission; that authorized representatives of the commission had knowledge of the defect in the project long in excess of the time required by the applicable statute; that the statutory demand had been made and that the project had been used by the public.

The evidence relative to the use of the project by the public and others requires careful scrutiny because unless a state highway has been opened for travel and there has been extended to the public an invitation, either expressed or implied, to use the highway, then there is no basis for recovery from the state.

The evidence touching upon the question of whether the project was open for travel may be summarized as follows: As before stated, there was no barricade on the township road, south of its intersection with the project and there was no barricade immediately west or east of its intersection with the project. The plaintiffs’ witness, Ered Lancaster, testified that he could get onto the project through his driveway or at the southwest end of such project, or on the township road intersection with it. He further testified that in 1941 there was a time when he didn’t remember seeing a sign at the intersection of the project and the highway, immediately east of Kinsley. He was asked the following question and gave the following answer:

“Q. And in the fall of 1941, Mr. Lancaster, did you observe traffic on this new road, would you see other people driving on it? A. Yes, sir; several of them drove that road, a lot of them.”

Fred Fletcher testified:

' “Q. Do you recall whether the grade there was well beaten by traffic? A. Well, it was good road.”

Sherman Holland, a witness for the plaintiffs, testified that in the fall of 1941 and in the spring of 1942 he observed some travel on the project. When asked whether the road showed signs of considerable traffic, he replied there was some traffic on it and that the project showed signs of traffic the full width of it. He testified that after September 5,1941, at which time the Coon Creek bridge was completed, the traffic on the project between the city of Kinsley and the intersection of the township road was by maintenance and construction workers and sight-seers.

Fred Fletcher also testified that in the fall of 1941 he traveled the project about every day from his home northeast of Kinsley. He would drive south on the township road until he came to the project and then would drive on it into the city of Kinsley. He stated he was certain that the project at that time was being maintained by the state highway department and that employees thereof observed him using the project road and did not make any objection to his using it; that on such occasions he also met other people who were using the project and that it was used quite extensively. Mrs. Fred Fletcher testified that she had used the project many times prior to the flood and that while it was being maintained by the highway department, she saw other cars on it and that the project road showed signs of considerable traffic. The father of the girls testified that he traveled the project in the fall of 1941 and spring of 1942 before the flood.

The resolution introduced by plaintiffs read as follows:

“Resolution for Relocation and Redesignation of road in Edwards County, Project 50S-24-FA 302 H. (5) ... be established, laid out, and opened in Edwards County, and be designated as a state highway and as a part of the state highway system in Edwards County, Kansas, and

That the road in said county, which has dangerous curves, described as follows, to-wit: [describing old road.]

“Be hereby ■ withdrawn from the system of state highways in Edwards County, Kansas, with the provision that the road shall be maintained and traveled as a detour highway until such time as the herein designated route shall be completed and opened for traffic.

“Net length of Old Road 2.164 miles

Net length of New Road 1.880 miles

Difference • 0.284 miles (deduction)”

Counsel for the plaintiffs contend that the resolution, the construction work and the testimony as to the use, maintenance and condition of the project road are sufficient to raise a question of fact for the jury to determine whether the project road by implication had been opened for travel. The district court overruled the defendant’s demurrer and submitted that issue, with others, to the jury. In support of the contention and the ruling the plaintiffs cite the case of Payne v. State Highway Comm., 136 Kan. 561, 16 P. 2d 509. The opinion in the cited case contains the following statement:

“There may be a defect in a state highway before it is improved or constructed, but liability under the statute does not arise until such highway is open for travel. This is the fundamental basis of liability. Designation is the first step in the establishment of a state highway, but does not necessarily open it for travel. It is not open for travel until there has been extended to the public an invitation, expressed or implied, to use such highway. When a highway is open for travel may, under certain circumstances, be a question of law for the court. On the other hand, cases may arise where it would be a question of fact for the jury to determine under all of the circumstances of the particular case. It is clear to us that the legislature did not intend liability should arise against the state for defects on the mere designation of a strip of land as a highway. The construction of the highway must have reached a point where the ordinary, prudent person would be warranted in believing that it was open to public use and a safe place to travel.” (p. 565.)

1. In the case of Payne v. State Highway Comm., supra, the alleged accident occurred at a time when the project was not being used for highway purposes and a review of the facts in such case clearly discloses that the project had not been opened for travel. Moreover, the plaintiff in such case was not using any part of the project as a highway but on the contrary regarded the involved area as part of his farm, and while he was operating a lister it struck a stake which had been driven level with the ground by an employee of the highway department. Under such circumstances this court held, as a matter of law, that the highway had not been opened for travel and that.no invitation had been extended, by implication, to the public to use it and that consequently no liability existed on the part of the state. The present case presents a more difficult question for decision. Counsel for the defendant contend that the record discloses no evidence which warranted the trial court in overruling the defendant’s demurrer insofar as it raised the question whether any showing had been made to the effect that the project had been, by implication, opened to public use for travel purposes. In such connection the defendant contends that it affirmatively appears from plaintiffs’ evidence that a regularly established and opened state highway existed from the northeast end of the project, which was barricaded, and the southwest end of the project, which was also barricaded; and further that such highway was designated as US 50S and all road signs directed traffic over such regularly.established and maintained highway into and out of the city of Kinsley from the east city limits to a point approximately two miles northeast thereof, which point was also the northeast extremity of the project. Counsel for the plaintiffs contend, however, that the project also was opened, by implication, from the point where the township road entered such project running in a southwesterly direction to the point of the washout immediately northeast of the Coon creek bridge where the snow fence barricade had been erected.

Viewing the plaintiffs’ evidence in its most favorable light from the standpoint of the demurrer, it can be said that a driver of a car in the vicinity of the city of Kinsley might have desired to go north on the township road for some purpose and upon reaching the intersection thereof with the project would have noted the barricade across the continuation of the township road and upon seeing the project road leading to the southwest would have thought it was reasonably safe to travel thereon and therefore have turned the automobile in such direction and continued thereon until the automobile reached the barricade near the Coon creek bridge. Consequently, it is the opinion of the court that the statement hereinbefore quoted from the case of Payne v. State. Highway Comm., supra, is controlling and that the trial court was justified in submitting to the jury the question, among others, whether the.project had been opened for public travel by implication. In such connection it should be noted that under the evidence submitted it cannot be said, as a matter of law, that the condition of the project at the point of its intersection with the township road was such that it did not invite public traffic or that an ordinarily prudent person would not have been warranted in believing that the project was open and a safe place to travel. Such a question was for the jury. So far as the traveling public is concerned, a highway is open if by its condition it presents, in the mind of an ordinarily prudent person, an invitation to travel thereon. A township road is as much a public road as any other and in many cases township and county roads are better than some state highways. If a traveler reaches a project road and sees that it is well traveled and there are no signs thereon indicating that it should not be used, it then becomes a question for the jury whether, under the existing circumstances, an ordinarily prudent traveler would have regarded the project as having been opened for public use. As hereinbefore set forth, the testimony in the present case develops that one witness testified he had traveled that'part of the project many times; that lié had seen others traveling it; that highway employees had seen him traveling it and had not protested; that it was a good road. Another testified that the road showed signs of traffic the full width of it; and still another testified that the road had good tracks on both sides. These conditions were shown to have been known and permitted by the highway commission and, therefore, the question whether they were such as to have constituted an implied invitation to an ordinarily prudent person to travel thereon must be regarded as one for the jury. The court is of the opinion that it would be unwise to have the law in such condition that the highway commission might aquiesce in the public use of a road and avoid liability for injuries resulting from defects therein.

2. The next question raised by the defendant’s demurrer is whether there was any evidence introduced by the plaintiffs proving that the accident was due to a defect in the project. In other words, it is the contention of the defendant that nothing was shown except that an accident occurred, and that beyond such showing the plaintiffs’ case rests purely on speculation and conjecture. It is well settled that the mere occurrence of an accident is not evidence of its proximate cause. Juries, however, are permitted to draw reasonable inferences from established circumstances even in the absence of direct and positive testimony, provided the circumstances relied upon are of such a nature and so related one to the other that a reasonable conclusion to be drawn therefrom is the theory sought to be established. No contention is made in the instant case that the washout, which extended across the project as well as on the sides of it, did not constitute a defect. As herein stated the evidence of the plaintiffs established that the snow fence barricade was difficult for a motorist to see. Evidence as to tracks made by the car developed the following: “I believe the furtherest back that I noticed them [20 to 25 feet from the barricade] it looked like the brakes had been applied, and from there on it was a continuous line on a slight angle, showing very slightly, like a skid would be, just enough to be noticeable.” The evidence also was to the effect that the washout was ten or fifteen feet beyond the barricade; that both wheels were on the top of the road but on the extreme right-hand side — inside the vegetation; and that the tracks just missed the side of the barricade. Other evidence as to tracks conflicted somewhat with the foregoing but we can consider only the evidence favorable to the plaintiffs for the’ purpose of the demurrer. Such conditions bring us to consideration of the rule of circumstantial evidence and its application in this case. The plaintiffs contend that the evidence, circumstantial and otherwise, justifies the conclusion that the driver of the car could not see the barricade until he was twenty to twenty-five feet from it; that he then applied the car brakes, turned the car to the extreme right side of the project road and was unable to stop the car before it came to the bank of the washout some ten or fifteen feet beyond the barricade. Adding the estimates as to distances from the point where the car started to turn to the right results in the observation that the car traveled only thirty or forty feet after it began to turn before it ran into the washout. In the face of such evidence this court cannot assume that the driver of the car saw the barricade in adequate time to have stopped the car before it reached the barricade but nevertheless deliberately drove off the project road into the field near the end of the bridge fqr some unexplained reason. We are confronted also with the presumption of due care in death cases. Consequently, this court is unable to say, as matter of law, in this case that the plaintiffs’ direct and circumstantial evidence wholly failed to prove a cause of action.

3. The defendant contends also that its demurrer should have been sustained because it affirmatively appears from the plaintiffs’ evidence that the proximate cause of the accident was the negligence of the driver of the car; that without such negligence no accident would have occurred and that consequently the driver’s negligence was the only proximate cause. The question of contributory negligence is not involved in the present case. It was not pleaded and it is not contended that the two little girls were negligent. Neither is it alleged that any negligence of the driver can be imputed to the girls on the theory of joint enterprise, agency or any other theory. The issue is clear under the pleadings: Was the accident due to a defect in the project or to the negligence of the driver of the car? The defendant cites in support of its contention the case of Mosier v. State Highway Comm,., 136 Kan. 468, 16 P. 2d 477. The cited case is clearly a contributory negligence case and is not in point. Our attention is also called to the case of Smith v. Mead Construction Co., 129 Kan. 229, 282 Pac. 708. The cited case is authority for the rule if two distinct causes are successive and unrelated in their operation one must be regarded as the proximate cause and the other as the remote cause. Assuming that the driver of the car was negligent, can it be said in the present case that his negligence was unrelated to and distinct from the difficult-to-distinguish barricade and the defect beyond it? Can we in this case disregard the defect as a remote cause and conclude, as a matter of law, that the driver’s negligence caused the accident? Our opinion is in the negative. In the last cited case the jury found that the driver of the car was negligent and in order to bring the case squarely in point we would be forced to conclude that the driver was negligent in the present case. We pass the question for the moment. The defendant also cites the case of Whitcomb v. Atchison, T. & S. F. Rly. Co., 128 Kan. 749, 280 Pac. 900, in which case a demurrer was sustained to a petition. In that case, however, the petition clearly discloses that the accident was due to the negligence of a third party and not to any negligent omission on the part of the railway. The defendant also relies on the case of Norris v. Ross Township, 98 Kan. 394, 161 Pac. 582. In such case the township did not have five days’ notice of the defect which caused the accident, and the decision turns on such a point. Ordinarily the question of what is the proximate cause is one for the jury. (See Clark v. Powder Co., 94 Kan. 268, 146 Pac. 320, and Corley v. Railway Co., 95 Kan. 124, 147 Pac. 842.)

Difficulty, however, frequently occurs in the application of the law relative to proximate and remote causes and since counsel for the defendant insist that the proximate cause in this case must have been the negligence of the driver, as a matter of law, additional consideration will be given the contention. The case of Clark v. Powder Co., supra, has been cited with approval by this court in many subsequent decisions and may be regarded as a leading case on the subject. Reference to the opinion in such case, which was written by Mr. Justice Dawson, who was later Chief Justice, discloses that the law relative to intervening causes is not controlling and does not necessarily relieve a defendant of liability in cases wherein it is clear that the injury or damage is the natural and probable consequence of the original wrongful act. From the opinion the following is quoted: “Running through all the precedents in analogous cases the test appears to be: Is the injury or damage the natural and probable consequence of the original negligence? The mere intrusion of an intervening ágency does not always excuse the original wrongdoer.” Continuing, the opinion quotes with approval from the case of Stone v. Boston & Albany Railroad, 171 Mass. 536, 51 N. E. 1, the following:

. . it was the duty of the original wrongdoer to anticipate and provide against such intervention, because such intervention was a thing likely to happen in the ordinary course of events. ... ‘In actions of this description, the defendant is liable for the natural and probable consequences of his negligent act or omission. The injury must be the direct result of the misconduct charged; but it will not be considered too remote if, according to the usual experience of mankind, the result ought to have been apprehended. The act of a third person, intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen. The original negligence still remains a culpable and direct cause of the injury. . .’ The question is not whether it was a possible consequence, but whether it was probable, that is, likely to occur, according to the usual experience of mankind ... a wrongdoer is not responsible for a consequence which is merely possible, according to occasional experience, but only for a consequence which is probable, according to ordinal and usual experience. One is bound to anticipate and provide against what usually happens and what is likely to happen; but it would impose too heavy a responsibility to hold him bound in like manner to guard against what is unusual and unlikely to happen, or what, as it is sometimes said, is only remotely and slightly probable.” (p. 273.)

In considering the question it is well to bear in mind, that in fixing the proximate cause of injury or damage, it is not necessary that ordinary caution and prudence would require that a specific injury would probably result but only that some injury would likely result therefrom. (Walmsley v. Telephone Association, 102 Kan. 139, 169 Pac. 197.) We are aware also of the rule that where an injury may be due to two causes, one an inanimate object and the other a negligent act of another, that the person who committed the negligent act is held liable but such a rule is subject to the qualification that the position of the inanimate object and the part which it played' in the accident cannot be attributed to the wrongdoing of some third person. (Durst v. Wareham, 132 Kan. 785, 297 Pac. 675.) It is true that ordinarily cases involving proximate and remote causes also involve different acts of negligence as distinguished from one act of 'negligence and a statutory liability such as a defect in a highway. However, the same rule has been applied in cases wherein one of the causes is statutory in its nature such as a defect in a highway and the other is based upon common-law negligence. (See Lincoln Township v. Koenig, 10 Kan. App. 504, 63 Pac. 90.) In the present case since the question whether the project was open by implication was for the jury, then it must follow from what has been said that the question whether the defect in the project was the proximate cause of the accident was also for the jury. It cannot be said, as a matter of law in this case, that a reasonably prudent person would not have anticipated that the project would be used for travel purposes. Such in turn would have necessitated that a barrier of adequate visibility should have been erected in such manner that it would have served as a warning to the driver of an automobile of the hazard beyond it in time for the driver to have seen the barrier and avoided an accident. The contention might be advanced that the failure to erect an adequate barricade was an omission in the nature of negligence and that the statutory liability is not predicated upon negligence. However, it is alleged that the failure to surround the washout with sufficient and proper barriers, having lights, reflectors, signs, notices or warnings thereon, constituted a defect in the project and from a practical standpoint a contention to the contrary would not be sound. (See Story v. Brown County, 116 Kan. 300, 226 Pac. 772, and Snyder v. Pottawatomie County Comm’rs., 120 Kan. 659, 245 Pac. 162.) In the opinion of the court a jury in the present case could have found from the evidence of the plaintiffs that the proximate cause of the accident was the improperly-guarded defect in the project. The jury also could have found that the proximate cause was the intervening careless driving of the car as indicated by the track testimony to the effect that the car was traveling at such speed when it reached the washout that it did not cave in the sides thereof before plunging into the same. Therefore, the proximate cause was a question for the jury. We need not pass upon the question whether the negligence of the driver was established as a matter of law because if a jury, on retrial, should .find the acts or omissions of the driver were not the proximate cause of the accident, then the question would become immaterial.

4. Counsel for the defendant urge us to consider certain instructions which they contend ate erroneous. Perhaps it would be helpful to respective counsel and the trial court if we depart from our usual rule and consider the question from an anticipatory standpoint. To do so, however, would require us to anticipate too much. It would require us to assume that the same evidence would be introduced; that the trial court would make the same rulings on demurrers and on a motion for a directed verdict and give the same instructions. On retrial a verdict of a jury or its answers to special questions might make possible errors in instructions immaterial. We neither approve nor disapprove the instructions because in the present case the jury was unable to agree and therefore, in this appeal we do not reach the question of what instructions should be given in some other trial.

Counsel for the defendant request us to consider also the possible errors arising in connection with the overruling of the demurrer to all the evidence and the motion for a directed verdict. Such rulings raise only the same questions raised by the demurrer to the plaintiffs’ evidence. No new uncontradicted defense testimony was injected into the record which requires a different ruling on the demurrer to all the evidence and on the motion for a directed verdict. Therefore, the rulings of the district court are affirmed.