Essmiller v. Southwestern Bell Tel. Co.

• Decision Date: 15 June 1974
• Docket Number: No. 47310,47310
• Citation: 524 P.2d 767,215 Kan. 74
• Parties: Arabella ESSMILLER, Appellant, v. SOUTHWESTERN BELL TELEPHONE CO., a corporation, and Myers Water Well Service, Inc., a corporation, jointly and severally, Appellees.
• Court: Kansas Supreme Court

Page 767

524 P.2d 767

215 Kan. 74

Arabella ESSMILLER, Appellant, v. SOUTHWESTERN BELL TELEPHONE CO., a corporation, and Myers Water Well Service, Inc., a corporation, jointly and severally, Appellees.

No. 47310.

Supreme Court of Kansas.

June 15, 1974.

Syllabus by the Court

1. The rules applicable to the granting of summary judgment are stated and applied.

2. A party seeking reversal because of the exclusion of evidence has the burden of showing prejudice as well as error in the ruling.

3. Under the provisions of K.S.A. 1973 Supp. 60-243(b) when an officer of a private corporation who is an adverse party is called to testify, that officer may be interrogated by leading questions.

4. It is not the prerogative of the supreme court to weigh the evidence on appellate review.

5. A general verdict will not be disturbed on appeal if there is any evidence or inferences to be drawn therefrom which support the verdict.

6. The record in an action to recover damages for personal injury, is examined, and, as more fully set forth in the opinion, it is held: (1) The district court did not err in granting summary judgment, and (2) the plaintiff was not prejudiced by the rulings or comments of the district court under the facts and circumstances disclosed by the record.

Kenneth C. Havner, Great Bend, argued the cause, and Larry L. Kopke, Great Bend, was with him on the brief for appellant.

Thomas J. Berscheidt, of Hampton & Ward, Great Bend, argued the cause and was on the brief for appellees, and Robert P. Keenan and Larry E. Keenan, of Keenan & Keenan, Greast Bend, were with him on the brief for appellee Southwestern Bell Telephone Co., a Corporation.

T. Larry Barnes and Philip McConnell, of counsel, of Topeka, appeared on the brief for Southwestern Bell Telephone Co., a Corporation.

FATZER, Chief Justice:

This is an action to recover damages for personal injuries suffered by Arabella Essmiller when she stepped into a trench located on her premises.

In September 1969, Southwestern Bell Telephone Company entered into a contract with Myers Water Well Services, Inc., for the installation of underground telephone cables to various residences within the city of Great Bend, Kansas. Prior to installing the service cable, the plaintiff was informed by an employee of Myers that it would be necessary to dig a trench across her property. Employees of Myers arrived at the Essmiller residence on September 25, 1969, and began opening a trench across plaintiff's property. The plaintiff was present at that time and visited with the workmen.

When completed, the trench traversed the backyard of the plaintiff from the alley to a point near the foundation of her house, and crossed both the garage driveway and a pathway in the backyard. The trench was approximately four and one-half inches wide and from twelve to eighteen inches in depth.

On Saturday, September 27, the plaintiff was advised by two of Myers' employees that they would not be able to complete the installation and therefore the trench across her property would be left open until the following Monday. That part of the trench which crossed the entrance to the garage was filled in to enable the plaintiff to remove her automobile. On Sunday, September 28, the plaintiff departed her house before noon and did not return until after 5:00 o'clock p. m. Later that evening, the plaintiff went into her yeard and turned on the lawn sprinkler. At approximately 8:30 p. m., she went out to turn off the lawn sprinkler and then walked around to her backyard. While walking in her backyard, the plaintiff stepped into the trench causing the injuries complained of.

With respect to the accident, the plaintiff testified during cross-examination as follows:

'Q. So the jury understands, then you walked out here and you were looking at Mr. Fisher?

'A. I looked over that way and never even thought, I turned around and stepped right into that hole.

'Q. You remember testifying in your deposition that you knew the ditch was there but you just didn't think about it?

'A. I wasn't used to having a ditch there.

'Q. You are not telling the jury you didn't know it was there?

'A. I knew it was there but I made that trip so many times I didn't think about a ditch being there.'

This action was filed by the plaintiff in September 1971, against Southwestern Bell Telephone Company and Myers Water Well Service, Inc., as co-defendants. Both Bell and Myers answered that at the time of the accident Myers was acting as an independent contractor pursuant to a contract, and that the construction work was under Myers' control. Bell also filed a cross-claim against Myers seeking indemnification for any judgment which might be entered against it.

Prior to trial, Bell moved for summary judgment based on the independent contractor relationship existing between the defendants. The district court sustained the motion, and the case was tried to a jury with Myers as the only defendant. Following a two-day trial the jury returned a general verdict in favor of Myers.

The plaintiff has appealed from the ruling of the district court sustaining Bell's motion for summary judgment, and alleged errors relating to the trial.

We shall first consider whether the district court erred in sustaining Bell's motion for summary judgment. A motion for summary judgment may be granted when the record before the court shows conclusively there remains no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Brick v. City of Wichita, 195 Kan. 206, Syl. 1, 403 P.2d 964; Bud Jennings Carpets & Draperies, Inc. v. Greenhouse, 210 Kan. 92, 499 P.2d 1096; Dawson v. Dawson, 212 Kan. 711, Syl. 1, 512 P.2d 522.) In Ebert v. Mussett, 214 Kan. 62, 519 P.2d 687, we discussed principles applicable to the granting of summary judgment, and said:

'. . . A material fact is one on which the controversy may be determined. The manifest purpose of a summary judgment is to avoid trial where there is no real issue of fact. In considering a motion for summary judgment, the court should not attempt to determine factual issues, but should search the record to determine whether factual issues do exist. Where there is a reasonable possibility of their existence, summary judgment will not lie. The court should give to the party against whom summary judgment is sought the benefit of all inferences that may be drawn from the facts under consideration. (Lawrence v. Deemy, 204 Kan. 299, 461 P.2d 770.)' (1. c. 65, 519 P.2d 690.)

The plaintiff admits the relationship between Myers and Bell was that of an independent contractor. She contends Bell is within two of the many exceptions to the general rule that the employer of an independent contractor is not liable for the torts or negligence of his contractor, or that of the said contractor's servants. (See Phillips Pipe Line Co. v. Kansas Cold Storage, Inc., 192 Kan. 480, 389 P.2d 766; Restatement (Second) of Torts, §§ 410-429 (1965); 41 Am.Jur.2d, Independent Contractors, § 24, et seq.) Succinctly stated, the plaintiff contends the construction work occurring on her property was inherently dangerous and Bell was negligent in supervising the trenching work. We note that in the district court's memorandum decision sustaining the summary judgment, it stated:

'The Court has, since the argument, studied the transcripts of the depositions along with the interrogatories and other evidence in the matter and makes the following determinations:

'. . . (T)he Court from any reading of the interrogatories along with the depositions can find no material fact of issue as between the plaintiff and the defendant, Southwestern Bell Telephone.

'. . . There is no evidence shown by the plaintiff that there was any control over the actions of Myers by Southwestern Bell and in fact the plaintiff admitted at the Pre-trial that other than relying on an agency type situation that they had no independent affirmative issues of negligence.'

Under the facts and circumstances disclosed by the record, we are of the opinion the activity in question was not inherently dangerous to a prudent person such as the plaintiff, who was fully apprised of the situation. Moreover, her evidence failed to show any act of negligence on the part of Bell.

As indicated, the case arose as a result of a homeowner stepping into a four and one-half inch wide trench in her backyard. The opening was created for the purpose of laying cable to plaintiff's residence at her request. She was advised of the activity and informed the trench was being left open. Under such facts we do not believe the activity involved constituted an unreasonable risk of harm. In view of this conclusion, it is unnecessary to consider the plaintiff's contention that Bell had a duty to perform all aspects of its franchise in a safe manner. (Restatement (Second) of Torts, § 428.)

Summary judgment should be rendered when the pleadings, depositions, interrogatories, and admissions before the district court show there is no genuine issue as to any material fact. (DeBauge Bros., Inc. v. Whitsitt, 212 Kan. 758, 512 P.2d 487.) A party cannot evade summary judgment on the mere hope that something may develop at the trial. (Meyer, Executor v. Benelli, 197 Kan. 98, 415 P.2d 415; Gray v. Ray Gill, Frontier Industries, Inc., 208 Kan. 95, 490...