Campbell v. Kansas Power & Light Co.

• Decision Date: 08 May 1948
• Docket Number: 37100.
• Parties: CAMPBELL v. KANSAS POWER & LIGHT CO.
• Court: Kansas Supreme Court

193 P.2d 177

165 Kan. 134

CAMPBELL v. KANSAS POWER & LIGHT CO.

No. 37100.

Supreme Court of Kansas

May 8, 1948

Appeal from Shawnee County, District

Appeal from District Court, Shawnee County, Division No. 2; Paul H Heinz, Judge.

Action by Alverta Campbell against Kansas Power & Light Company for injuries sustained by plaintiff when struck by defendant's passenger bus. From order sustaining demurrer to petition on ground that it did not state a cause of action, plaintiff appeals.

Reversed with directions.

Syllabus by the Court

1. In an action for damages alleged to have been sustained when a passenger bus collided with the plaintiff, the petition alleged that the collision occurred while the bus was being operated along route and while plaintiff was waiting for it at a regular bus stop and was caused by the negligent action of the driver of the bus in swerving toward the curb where the plaintiff was standing waiting to board it, and plaintiff was in plain view of the driver-- Held, that such petition stated a good cause of action against the bus company even though it did not contain an allegation in so many words that the driver of the bus was an employee of the bus company and was at the time of the collision acting in his master's business.

2. In an action such as that described in the above paragraph of this syllabus where no motion to make definite and certain was directed at the petition, it will be given a liberal construction in favor of the pleader.

David Prager, of Topeka (Edward Rooney and Jacob A. Dickinson, both of Topeka, on the brief), for appellant.

Earl C Moses, Jr., of Topeka (Clayton E. Kline, M. F. Cosgrove Balfour S. Jeffrey and Robert E. Russell, all of Topeka, on the brief), for appellee.

SMITH Justice.

This was an action for personal injuries alleged to have been sustained when a passenger bus operated by defendant struck the plaintiff. The plaintiff has appealed from an order of the trial court sustaining defendant's demurrer to her petition on the ground that it did not state a cause of action.

The petition alleged first that defendant was engaged as a common carrier in the transportation of passengers for hire on the streets of Topeka; that on a date named plaintiff was standing on the curbing waiting for the arrival of one of defendant's buses at a regular bus stop; that defendant's bus was traveling west on Twenty-first Street; that as the bus approached the bus stop she was pushed off the curbing onto the street by a crowd of waiting passengers, all of which was clearly visible to the driver of defendant's bus; that as the bus approached the stop at a speed of ten to fifteen miles per hour it curved into the curbing and toward plaintiff and struck and injured her; that the plaintiff's injuries were the proximate result of the collision and the collision was the proximate result of the negligence of defendant's driver; that the defendant was negligent because defendant's driver failed to keep a lookout and because its driver in approaching the bus stop curved in toward the plaintiff in a reckless and wanton disregard of her safety and the safety of others and that the defendant's driver failed to stop or to take any means to avoid injuring the plaintiff. The petition then detailed the amount of damages suffered by plaintiff.

The defendant demurred to this petition on the ground that it failed to state a cause of action. The trial court advised counsel that the demurrer was sustained on account of the failure of the plaintiff to allege that the bus involved in the accident was being driven by an agent or employee of the defendant while engaged in the furtherance of the defendant's business. That is the sole question presented on appeal.

Appellant states the question involved as follows: 'Does a petition against which no motions have been directed sufficiently state a cause of action against a common carrier bus company when it alleges the nature of defendant's business and facts showing that defendant's bus was engaged in defendant's business as a carrier of passengers at the time certain negligence was committed by defendant's driver or must the petition allege in so many words that the driver of defendant's bus was a 'servant, agent and employee of defendant acting for the benefit of defendant?''

At the outset it should be stated that the court in its letter advising the parties that the demurrer was being sustained stated that it was doing so under the rule announced in Willett v. McCormick, 161 Kan. 658, 170 P.2d 821 822. That was an action for damages alleged to have been sustained when a truck driven by the agent of defendants collided with the automobile plaintiff was driving. The paragraph of the petition upon which the case turned was as follows: 'Plaintiff's automobile was struck by a truck which was traveling north on Van Buren Street, which truck...