Van Royen v. Osborn

The opinion of the court was delivered by This is an appeal from an order of the trial court overruling
appellant's demurrer to appellee's petition. The petition substantially stated that on April 22, 1953,
appellee was in appellant's employ as a truck driver. He was sent
to Wichita in appellant's truck to pick up a load of canned oil
and sacked feed and to return to appellant's place of business in
Elk Falls with the load. On the return trip the state highway
patrol gave appellee a summons to appear before a justice of the
peace in Augusta at 8:00 p.m. on April 23, 1953, because the
truck was overloaded. Appellee drove on to Elk Falls and notified
appellant, his employer, of the circumstance. Appellant ordered
appellee to be ready to attend the court of the justice of the
peace in appellant's company and appellant would furnish
transportation to Augusta. Pursuant to the above instructions
appellee met appellant and they started driving to Augusta in
appellant's automobile. Appellee sat on appellant's right and on
appellee's right was Thomas S. Baughman who went along. All three
were in the front seat. As they proceeded west on highway 96
toward Augusta at about 7:40 p.m. on April 23, 1953, it was dark
and raining; the blacktop was slick and visibility was poor;
appellant was driving in excess of seventy miles per hour;
approximately eight miles west of Leon appellant, while driving
in a negligent, careless, reckless and willful manner at an
extremely high and dangerous rate of speed, crashed into the rear
of a Plymouth automobile stalled on the highway. The taillights
of the automobile were burning at the time and the owner of said
automobile stood at the rear thereof flagging traffic with a
lighted flashlight.