Atherton v. Goodwin

• Decision Date: 03 May 1947
• Docket Number: 36697.
• Citation: Atherton v. Goodwin, 163 Kan. 22, 180 P.2d 296 (Kan. 1947)
• Parties: ATHERTON v. GOODWIN et al.
• Court: Kansas Supreme Court

180 P.2d 296

163 Kan. 22

ATHERTON v. GOODWIN et al.

No. 36697.

Supreme Court of Kansas

May 3, 1947

Appeal from District Court, Russell County; C. A. Spencer, Judge.

Action by W. P. Atherton, doing business as Fose Grain Company against J. A. Goodwin and Reno Creamery Company for damages.From order denying defendants' motions to strike certain paragraphs of plaintiff's petition, the defendants appeal.

Syllabus by the Court

1.It is not a necessary element of negligence that one charged with it should have been able to anticipate the precise injury sustained.

2.The negligence charged must have been the proximate or legal cause of the injury.

3.The proximate cause of an injury is that cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act.

4.There is no precise formula for marking the line between proximate and remote consequences following a negligent act and ordinarily, the questions of negligence, including proximate cause, and whether damages sought could have been foreseen or anticipated by the exercise of ordinary prudence and foresight, are for the jury.

5.Contributory negligence of the plaintiff is an affirmative defense and the burden of proving it ordinarily rests on the defendant, but where a petition is so framed as to disclose contributory negligence on its face, it is demurrable.

6.The record examined in an action to recover damages for negligence, and held, that the trial court did not err in its rulings on motions to strike, which motions were treated as demurrers.

J. Richards Hunter, of Hutchinson (Walter F. Jones and R. Y. Jones, Jr., both of Hutchinson, and Jerry E. Driscoll, of Russell, on the brief), for appellants.

Clifford R. Holland, of Russell (Herbert N. Holland, of Russell, on the brief), for appellee.

THIELE Justice.

This was an action for damages.Defendants' motions to strike certain paragraphs of plaintiff's petition were denied, and they appeal.It may here be noted that the parties and the trial court considered the motions to strike in the nature of demurrers, and we shall so consider them.Starks Food Markets, Inc. v. El Dorado Refining Co.,156 Kan. 577, 134 P.2d 1102;41 Am.Jur. 529.

The portions of the petition necessary to notice contained the following allegations: Plaintiff operated a grain elevator and warehouse in Russell and was required to and kept an accurate scales used for the purpose of weighing grain delivered to him for purchase or storage, and in order to correctly drive upon the scales or scale platform it was necessary for the driver of any vehicle to drive either straight west from the east or straight east from the west, and up to July2, 1944, at 11 p. m. the scales were properly adjusted within a stated tolerance.Defendant company is a corporation engaged in manufacture, purchase and distribution of dairy products, and defendant Goodwin was an employed agent and truck driver of the company.In paragraph six it is alleged that on July 2, 1944, about 11 o'clock p. m., Goodwin, in the course of his employment and while driving the company's truck to which was attached a semitrailer capable of carrying a capacity of ten tons and loaded approximately to capacity, negligently and without permission and consent of plaintiff, backed the truck and semitrailer in a southwesterly direction and then in a northwesterly direction and did travel across the scales platform and particularly over the north line thereof and while so doing Goodwin negligently and without observing the direction he was traveling, struck and collided with a cement platform situated immediately south of the scales platform and caused a part of the cement platform weighing approximately 200 pounds to be torn loose and fall on the scales platform, and that immediately after the cement block had fallen across the scales platform Goodwin, while proceeding in a north or northwesterly direction, violently applied the brakes on his truck, which was loaded to capacity and the truck came to a sudden stop, causing the weighing platform and scales to be violently shaken and vibrated, and immediately thereafter Goodwin again started his truck and backed off in a northerly direction, causing the front wheels of the truck to pass over the north line or side of the scales platform, and as a result the scales which had been previously correctly in balance were thrown off balance and were misaligned, misadjusted and unbalanced and caused to weigh incorrectly and over-weigh all loads which might be weighed on the basis of 200 pounds to every 8,400 pounds.The seventh paragraph of the petition reads as follows:

'The plaintiff further avers that the said J. A. Goodwin or said defendant corporation, knowing that the said J. A. Goodwin had willfully, wrongfully backed over and across said scales platform at an angle instead of driving straight over and across said scales platform and further knowing while traveling over said scales platform or said platform, that said truck had struck and hit said cement block or step, and that a part thereof had violently fallen on said platform and further knowing that, said J. A. Goodwin, while said J. A. Goodwin had backed said truck over and across said platform at an angle, loaded as aforesaid, the said J. A. Goodwin had applied his brakes to said truck immediately after said collision, thereby stopping said truck on said scales platform causing the said scales platform and scales to be violently shaken and vibrated and further knowing that said J. A. Goodwin, after stopping said truck, did thereafter continue to drive over and across the north line of said scales platform and being an improper method of driving over said scales and knowing that from either or all of said acts could and would cause said scales to become unbalanced, misaligned and misadjusted, did knowingly and negligently fail to inform or notify the plaintiff of said facts and concealed the same from this plaintiff and that by reason of said failure to notify this plaintiff, on the part of the said defendant, J. A. Goodwin or the said defendant corporation, the plaintiff did without notice or knowledge, on his part, as to the facts hereinbefore related and without notice or knowledge on his part that said scales had become unbalanced, misaligned and misadjusted, did during the period of time from July 3, 1944, to July 10, 1944, buy and purchase wheat which was sold and delivered to him by numerous farmers and landlords and by reason thereof, this plaintiff was required and compelled to pay and did pay for 3,011 bushels of wheat at the average price of $1.35 per bushel in excess of the wheat which was actually delivered to him and which was caused by the reason that said scales over-weighed on the basis of 200 pounds for every 8,400 pounds which was weighed over said scales platform and said scales and that by reason thereof, this plaintiff was damaged in the sum of $4,064.85.'

The eighth paragraph alleges that an exhibit is attached showing the names of persons from whom grain was purchased and the amount thereof from July 3, 1944, to July 10, 1944.One other paragraph and the prayer of the petition need not be noticed.

For present purposes it may be said that the company and Goodwin filed separate but identical motions to strike from the petition the allegation in paragraph six that the scales were caused to weigh incorrectly on the basis alleged, and all of paragraphs seven and eight.The trial court denied these motions and the defendants appealed.

In their brief appellants state that the appellee has attempted to state two distinct elements of damage, one for injuries sustained to the cement dock or platform, which, if proved, would warrant a judgment, and the other for overpayments made by appellee for wheat purchased which was overweighed on appellee's scales, and that the motions to strike were filed to eliminate from the petition all allegations having to do with this second element.As to this second element, two principal contentions are made.It is not contended that the petition does not allege negligence but that the negligence pleaded is too remote to be actionable, or if actionable, the negligence of the appellee in not observing conditions pleaded and determining accuracy of his scales was an effective intervening proximate cause of his alleged damage, or stated another way the negligence of appellee precludes his recovery from appellants.

The first question for discussion is whether the negligence of appellants is too remote to be actionable.In support of their contentions that it was too remote appellants direct our attention to the following decisions of this courtCleghorn v. Thompson,62 Kan. 727, 64 P. 605, 54 L.R.A. 402;Light Co. v. Koepp,64 Kan. 735, 68 P. 608;Simon v. Telephone Co.,97 Kan. 42, 154 P. 242;Beldon v. Hooper,115 Kan. 678, 224 P. 34;Davies v. Shawver,134 Kan. 772, 8 P.2d 953;Greiving v. LaPlante,156 Kan. 196, 131 P.2d 898;Jones v. Public Service Co.,158 Kan. 367, 147 P.2d 723.Without analyzing each of these decisions, it may be said of each that upon the facts disclosed, it was held that the damages sought could not have been foreseen and would not have been anticipated by the exercise of ordinary prodence and foresight.Each of the above cases recognize the converse of the above that the negligence is actionable if the damage might have been foreseen by a man of ordinary intelligence and be a probable result of the initial act.In Jones v. Kansas Public Service Co., supra, it was said: 'Each case must be decided largely upon the special facts...