Furstenberg v. Wesley Medical Center

• Decision Date: 27 January 1968
• Docket Number: No. 44876,44876
• Citation: 200 Kan. 277,436 P.2d 369
• Parties: Marguerite E. FURSTENBERG, Appellant, v. WESLEY MEDICAL CENTER, also known as Wesley Hospital, also known as Wesley Hospital and Nurses Training School, and Hahner, Foreman & Harness, Inc., formerly Hahner-Foreman, Inc., Appellees.
• Court: Kansas Supreme Court

Page 369

436 P.2d 369

200 Kan. 277

Marguerite E. FURSTENBERG, Appellant, v. WESLEY MEDICAL CENTER, also known as Wesley Hospital, also known as Wesley Hospital and Nurses Training School, and Hahner, Foreman & Harness Inc., formerly Hahner-Foreman Inc., Appellees.

No. 44876.

Supreme Court of Kansas.

Jan. 27, 1968.

Syllabus by the Court

1. In ruling on a motion for a directed verdict all disputed factual questions and all inferences reasonably to be drawn from the evidence must be resolved in favor of the

party against whom the motion is directed, and where reasonable minds might reach different conclusions thereon, the motion should be overruled and the case submitted to the jury.

2. Findings of negligence on the part of a litigant are not to be predicated on mere possibility or on conjecture, speculation or surmise.

3. It is the general rule that where a verdict awarding damages is so inadequate as to indicate passion or prejudice on the part of the jury, the verdict should be set aside and a new trial granted.

4. There is no fixed or absolute standard for measuring the adequacy or inadequacy of a verdict, but the question must be determined on the basis of the particular facts and circumstances obtaining in the individual case.

5. Whether personal injury has proximately resulted from negligence on the part of a defendant, and the extent of the injury so resulting, are ordinarily matters for a jury to determine.

6. It is not misconduct on the part of a jury which, of itself, necessitates a new trial, but misconduct which causes prejudice to a litigant and deprives him of his right to a fair and impartial trial.

7. Our rule is that, in the first instance, it is for the trial court to determine whether misconduct on the part of the jury has resulted in prejudice to a litigant's rights, and its judgment will not be disturbed in the absence of a clear abuse of discretion.

8. The record is examined in an action brought against two defendants, a hospital and a construction contractor, and for reasons set forth in the opinion it is held: (1) that the trial court did not err is sustaining the contractor's motion for a directed verdict made after all the evidence had been presented; (2) that the verdict against the hospital was not so inadequate as to indicate passion and prejudice on the part of the jury; and (3) that the trial court did not abuse its discretion in determining that plaintiff was not prejudiced by misconduct on the part of the jury.

Patrick J. Warnick, Wichita, argued the cause and was on the brief for appellant.

James R. Hanson, Wichita, argued the cause, and John E. Boyer, Paul J. Donaldson, Kenneth P. Stewart, and Robert L. Smith, Wichita, were with him on the brief for appellee The Wesley Medical Center.

Robert C. Foulston, Wichita, argued the cause, and George B. Powers, John F. Eberhardt, Stuart R. Carter, Robert M. Siefkin, Malcolm Miller, Robert N. Partridge, Richard C. Harris, Gerald Sawatzky, Donald L. Cordes, Robert L. Howard, Charles J. Woodin, Mikel J. Stout, Benjamin C. Langel, Phillip S. Frick, Jerry G. Elliott, and John E. Foulston, Wichita, were with him on the brief for appellee Hahner, Foreman & Harness, Inc.

FONTRON, Justice.

The plaintiff, Marguerite E. Furstenberg, commenced this action to recover damages for personal injuries alleged to have resulted from the concurrent negligence of the two defendants: (1) Wesley Medical Center, also known as Wesley Hospital, and as Wesley Hospital and Nurses Training School, and (2) Hahner, Foreman and Harness, Inc., formerly Hahner-Foreman, Inc. For convenience, we shall refer to Mrs. Furstenberg by name, or as plaintiff; to defendant, Wesley Medical Center, as the hospital; and to defendant Hahner, Foreman and Harness, Inc., as Hahner.

The case was tried to a jury where each defendant, at the completion of plaintiff's evidence, filed a motion for a directed verdict. The trial court overruled both motions but sustained an identical motion by Hahner at the conclusion of all the evidence. The trial then continued as to the hospital and a verdict was returned in plaintiff's favor.

Mrs. Furstenberg has appealed both from the order sustaining Hahner's motion for a directed verdict and from the judgment entered in her favor against the hospital contending, as to the latter, that the verdict was grossly inadequate and rendered under passion and prejudice, and that the jury was guilty of misconduct.

Briefly summarized, the plaintiff's evidence disclosed that between 10:00 and 10:30 p. m., February 11, 1963, she went to the hospital with her son, who had been injured in a high school basketball game; after parking the car, the two of them walked toward the emergency room entrance, following a driveway which had been torn up, and walking over pieces of concrete which they could see by car lights in the area; that as they neared the emergency room, the entrance to which was a temporary wooden shed with a door opening outward, plaintiff's son stepped ahead to open the door and plaintiff took a step forward into a hole or 'gouged-out' place within a foot or two of the arc of the door, which caused her to fall face forward on the concrete floor of the shed; that there were no lights in the entrance area and a nurse told her the electricity had been cut off that one day.

With this brief resume , we shall first consider plaintiff's contention that there was sufficient evidence of negligence on the part of Hahner to require that the case against it be submitted to the jury. The negligence charged against both Hahner and the hospital was in creating and allowing the hole to exist at the emergency room entrance and in failing to light the area adequately. The jury, in returning its verdict against the hospital, found that the defective or dangerous condition which directly caused plaintiff's fall and injuries was 'inadequate lighting.'

We believe the evidence presented on plaintiff's behalf wholly failed to connect Hahner with either the creation or the maintenance of the hole which caused plaintiff to fall. Counsel for Mrs. Furstenberg, with admirable candor, concedes that her evidence may have been insufficient to establish negligence on the part of Hahner, but submits that the deficiency was cured by evidence submitted on behalf of the defendants through the testimony of A. B. Davis, Jr., assistant administrator of the hospital, and that of Harold Rausch, Hahner's construction superintendent.

Mr. Davis testified that Hahner commenced work at the hospital on January 30, 1963; that an old retaining wall was removed and a new one poured on February 7, 1963; that Hahner was breaking concrete at the north side of the emergency area preparatory to putting in supports for a new building; that he did not know whether the concrete had been removed on February 11; that the exterior lights were operated automatically by a time clock, but there was an interruption of power in the area of the old retaining wall due to the construction.

Mr. Rausch testified that Hahner did not build the emergency entrance, which had an asphalt ramp extending three feet to the front for wheelchair patients; that a power shovel and back-hoe were used to remove the retaining wall which was in the vicinity of the shack over the emergency entrance, but not within the arc of the doorway, and ready-mix concrete trucks were used to pour cement; the trucks were heavy and were used in the entrance area; he had not been in the area after 4:30 p. m. and did not know whether one of Hahner's machines had made the hole, but it could have; that he did not know what had made it. Rausch also testified that snow fences and oil lamps were placed around the construction area to confine it to the north and south of the shack; the lamps were about twelve feet from the entrance and gave a warning light.

In arguing that there was sufficient evidence of negligence on Hahner's part to go to the jury, the plaintiff calls attention to our rule that in passing on a motion for a directed verdict all disputed questions of fact and all inferences which can reasonably be drawn from the evidence must be resolved in favor of the party against whom the motion is directed, and that where reasonable minds might reach different conclusions thereon, the motion should be denied and the case submitted to the jury. (Schmatjen v. Alexander, 192 Kan. 807, 391 P.2d 313; Brown v. East Side National Bank, 196 Kan. 372, 411 P.2d 605.) Plaintiff also stresses the point that where the negligence of two or more persons concur in causing injury to another, those whose acts united in producing the injury will be held liable to the injured party. (Rowell v. City of Wichita, 162 Kan. 294, 176 P.2d 590, and cases cited therein.)

We are not in disagreement with the foregoing principles. However, the question before us, as to Hahner, is whether the record contains substantial competent evidence showing actionable negligence on Hahner's part, when viewed in the light of those principles. Hahner argues vigorously that the testimony of Rausch and Davis, when considered together, provides, at best, a mere possibility or speculation that its equipment created the hole causing the damage. Counsel calls attention to a number of our cases adhering to the rule that findings of negligence may not be based on conjecture or surmise. (See Beeler v. Atchison, T. & S. F. Railway Co., 107 Kan. 522, 192 P. 741; Whiteker v. Wichita Rld. & Light Co., 125 Kan. 683, 265 P. 1103; Snyder v. McDowell, 166 Kan. 624, 203 P.2d 225; In re Estate of Modlin, 172 Kan. 428, 241 P.2d 692.)

We acknowledge the validity of the principle expressed in the foregoing cases. However, in view of the jury's findings, we do not deem it necessary to decide whether the evidence, which plaintiff claims would be sufficient to establish that Hahner created the hole, amounts to anything more than pure conjecture.

In answer to special questions, the jury...