Albright v. McElroy, 45943
| Decision Date | 15 May 1971 |
| Docket Number | No. 45943,45943 |
| Citation | 484 P.2d 1010,207 Kan. 233 |
| Parties | James ALBRIGHT, a Minor, By and Through His Mother and Next Friend, Bedola M. Ross, Appellant, v. Robert D. McELROY, d/b/a Bob's Ditching Service, et al., Appellee. |
| Court | Kansas Supreme Court |
1. Rules governing the propriety of summary judgments are stated and applied.
2. A contractor in the prosecution of work adjacent to a street must exercise reasonable care for the protection of those rightfully in proximity to the work.
3. Where proper notice or warning of a dangerous condition is given by one bound to give it, he generally is relieved for injury received by another who does not heed it.
4. In an action for damages arising out of a fall into an excavation, it is held the record before the district court disclosed no genuine issue of material fact and defendant's motion for summary judgment was properly sustained.
Payne H. Ratner, Jr., of Ratner, Mattox, Ratner, Ratner & Barnes, Wichita, argued the cause, and Patrick L. Dougherty, Wichita, of the same firm was with him on the brief of for appellant.
Paul Kitch, of Fleeson, Gooing, Coulson & Kitch, Wichita, argued the cause, and Donald R. Newkirk and Richard I. Stephenson, Wichita, of the same firm were on the brief for appellee.
HARMAN, Commissioner.
This appeal is by a youthful plaintiff from summary judgment rendered against him in his action for damages resulting from a fall into an excavation made by defendant.
Briefly stated, so far as now pertinent, plaintiff's petition alleged that defendant was engaged as a subcontractor on a construction job for the Grace Lutheran Church located near Pawnee and Hillside streets in the city of Wichita and as such agreed to perform certain excavation work necessary for installation of a sanitary sewer; that on July 18, 1968, defendant caused a large excavation to be made on an easement adjoining the church property and in close proximity to Pawnee street, and upon completion permitted the excavation to remain open but installed two small barricades with two small lights near it; that the barricades were inadequate to warn pedestrians concerning the location and dangerous character of such excavation; on July 18, 1968, about 10:00 p. m. plaintiff was walking along the north side of Pawnee when he fell into the excavation and suffered severe injuries, such occurrence being proximately caused by defendant's negligence.
Defendant filed his answer admitting he was engaged as a subcontractor to perform certain excavation work at the construction site and that plaintiff sustained some injury at the approximate time and place in question but denying defendant was guilty of any negligence causing the injury. Defendant also alleged contributory negligence.
In sustaining defendant's motion for summary judgment the trial court had before it the pleadings, answers to interrogatories and certain discovery depositions. The latter included those of plaintiff, the five boys who accompanied him at the time of the incident and the defendant.
These depositions disclosed that on July 18, 1968, defendant and his employees, pursuant to specifications furnished by the city of Wichita, had dug a large hole on the south side of Pawnee street, across from the church, for the purpose of building a manhole there and laying a drain across the street northward to the church. The hole was about twelve by fourteen feet in size and from fourteen to twenty feet in depth. It was about one foot from the south edge of Pawnee street but had a twenty-four inch wide notch on the north side which came within six or eight inches of the side of the asphalt street. The hold was located on a twenty-five foot parking easement. A pathway on the south side of the hole was used by pedestrians but there was no sidewalk.
Defendant testified he and his employees had left the excavation between 4:30 and 5:00 p. m. on the day in question; before leaving they had placed four barricades around it, one on each side. Two more barricades were placed on the street, one being fifty feet east of the hole and the other fifty feet west of it. The barricades were of a wooden sawhorse type construction with a yellow flashing light mounted on each. Some of the dirt had been trucked away and some remained about the hole.
Plaintiff, who was nearly fourteen years of age at the time he was injured, testified that earlier in the day he and a friend had gone to a hamburger stand at Hillside and Pawnee and had observed construction in progress at the church but did not notice the hole; about 9:00 p. m. he had again gone to the hamburger stand with three other boys; en route they did not go past the church site but took a short cut through some yards; he had no recollection of events occurring that night after they left the hamburger stand.
The other five youths, who ranged in age from thirteen to fifteen years, testified substantially that they left the hamburger stand together with plaintiff about 9:30 to 10:00 p. m. walking east down Pawnee street. They noticed the barricades, flashing lights and the hole. The boys' testimony varied as to the exact number and location of the barricades and as to the precise manner in which plaintiff fell into the hole except that he went in where the notch was made near the edge of the street. The boys had remained about the hole several minutes before plaintiff fell in and talked about taking one of the yellow lights. Plaintiff was facing south when he went into the hole. One boy testified there was no barricade on the north side of the hole. Rocks were tossed into the hole to see how deep it was. Several of the boys had gone by the hole earlier in the day and knew it was there. One boy gave the following testimony (plaintiff, whose full name is James Christopher Albright, is referred to throughout as Chris):
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into the hole.
'Q. He was sitting on the north--
'A. North, yes.
'Q.--end of the hole with his feet dangling into the hole?
'A. Yes, he was.
'Q. I assume he was facing to the south?
'A. Yes.
'Q. And you turned around, you saw him slip from that position into the hole?
'A. Well, he said, 'Oh', or something, when he slipped in. I don't know if he slipped in that position or not. That's when he was about beside me and he was fooling around by the hole. And we walked on and I heard him say, 'Oh', and I saw him slip down into the hole.
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