Giltner v. Stephens

• Decision Date: 30 November 1948
• Docket Number: 37177.
• Citation: 166 Kan. 172,200 P.2d 290
• Parties: GILTNER v. STEPHENS.
• Court: Kansas Supreme Court

200 P.2d 290

166 Kan. 172

GILTNER v. STEPHENS.

No. 37177.

Supreme Court of Kansas

November 30, 1948

Appeal from District Court, Labette County; Harry W. Fisher, Judge pro tem.

Action by O. H. Giltner against H. P. Stephens to recover for injuries allegedly resulting from negligence of defendant. From a judgment for the defendant, the plaintiff appeals, and the defendant cross-appeals.

Judgment affirmed.

SMITH and COWAN, JJ., dissenting.

Where plaintiff's proof, in action for injuries sustained when girder fell on plaintiff while he was building a barn for defendant, showed that he built derrick being used to raise the girder, that he owned the block and tackle on the derrick, that he prepared the girder for lifting, and that he assisted in the lifting of the girder, he could not rely on doctrine of res ipsa loquitur.

Syllabus by the Court.

1. The record examined in an action to recover damages for negligence, and held, that the trial court did not err in its rulings on (1) defendant's demurrer to plaintiff's petition; (2) defendant's objection to the introduction of evidence and his motion for judgment on the pleadings and the opening statement of plaintiff; and (3) defendant's motion, at the close of the evidence, for a directed verdict.

2. Instructions to the jury must be construed together and if taken as a whole they properly state the law, they are sufficient.

3. An answer to a special question may not be set aside merely because it is inconsistent with the general verdict nor because it is inconsistent with an answer to another special question.

4. A general verdict imports a finding upon all the issues of the case not inconsistent with the answers to special questions submitted, and such special findings are to be given such a construction, if possible, as will bring them into harmony with the general verdict.

5. If the special findings cannot be reconciled with the general verdict and are sufficiently full and complete in themselves and are not inconsistent in themselves, judgment must follow the special findings.

6. The test of inconsistency in defenses is whether proof of one necessarily disproves the other.

7. Where plaintiff's proof showed that he built a derrick being used, owned the block and tackle thereon, prepared a girder for lifting, assisted in its lifting and what caused it to fall, he may not rely upon the doctrine of res ipsa loquitur.

8. The record further examined, and held, the trial court did not err (a) in denying plaintiff's motion to compel the defendant to elect between defenses for the asserted reason they were inconsistent; (b) in giving erroneous instructions resulting in rejudice to the plaintiff; (c) in refusing to set aside the jury's answers to special questions submitted; (d) in rendering judgment on the special findings embodied in the answers to the special questions; (e) in refusing to apply the doctrine of res ipsa loquitur; or (f) in denying plaintiff's motion for a new trial.

Jack L. Goodrich and A. L. Foster, both of Parsons for appellant.

Elmer W. Columbia, of Parsons (John B. Markham and Herman W. Smith Jr., both of Parsons, on the brief), for appellee.

THIELE Justice.

This was an action to recover damages for injuries sustained by plaintiff as the result of alleged negligence of the defendant. Intervening matters are mentioned later but at the trial the jury returned a general verdict in favor of the plaintiff and answers to special questions submitted. The trial court sustained the defendant's motion for judgment on the answers to the special questions, denied post trial motions and rendered judgment in favor of the defendant. The plaintiff has appealed and specifies error in matters hereafter noted. The defendant has filed a cross-appeal from certain adverse rulings and specifies errors hereafter noted.

We note a previous appeal wherein the sufficiency of the defendant's answer was under consideration, and where the pleadings were reviewed. Giltner v. Stephens, 163 Kan. 37, 180 P.2d 288. However, we shall here review the pleadings sufficiently to discuss the questions presented in this appeal.

In his petition plaintiff alleged that he was a trained and skillful carpenter of many years experience, and that defendant owned and operated a dairy farm; that in October, 1943, defendant orally hired plaintiff as a carpenter and agreed to construct a dairy barn and that construction started November 3, 1943, and plaintiff worked continuously on the structure until December 4, 1943; that on November 19, 1943, defendant provided a coservant, McDowell, who was about fifty years of age, totally deaf, with impaired speech, and it was necessary to make communications and instructions to him in writing; that McDowell was erratic and emotionally unstable and an incompetent coservant, which defendant knew; that plaintiff told defendant's employee, Moore, of McDowell's incompetency and Moore said he would report to the defendant; that on December 2, 1943, plaintiff told defendant that McDowell was incompetent and defendant said he would see about getting other help; that on December 4, 1943, defendant personally began work but was not competent to perform other than as a common laborer, which was unknown to plaintiff; that about 2:30 o'clock p. m. of said day, plaintiff, defendant and McDowell were raising a larger girder by means of a derrick or gin pole equipped with block and tackle, operated with a rope, all being completely described, and when the girder had been hoisted about nine feet above the ground and ready to be placed upon the wall where it was to rest, plaintiff then said, 'Hold it,' leaving defendant and McDowell holding the rope. Plaintiff then followed a described route toward a stepladder which he was to use in placing the girder on the wall and heard defendant call, 'Look out.' Plaintiff looked up and saw the rope running through the pulleys, the girder fell and he sustained serious injuries. Then follow allegations which will be mentioned later when discussing the doctrine of res ipsa loquitur. The petition alleges further that defendant personally and by his employee McDowell negligently turned loose of the rope holding the girder so that the girder fell upon plaintiff, and that defendant was negligent in hiring McDowell when he knew McDowell was incompetent because of deafness and instability, in retaining McDowell when defendant knew of McDowell's condition, in undertaking to assist plaintiff when defendant knew he was incompetent, in turning loose of the rope holding the girder, and in failing to provide competent coservants. Allegations concerning injuries received need not be noted.

Defendant's demurrer to the above petition was overruled and he answered, alleging his version of plaintiff's employment, the hiring of McDowell and that the derrick being used was constructed by the plaintiff and that the block, tackle and rope used thereon were the property of plaintiff, and that plaintiff had full charge thereof; that previous to the accident, plaintiff and McDowell had placed a number of girders; that on December 4, 1943, plaintiff and McDowell had raised the girder about six feet and plaintiff requested defendant to assist in pulling on the rope and that the girder was by the three of them lifted to about nine feet; that plaintiff then instructed defendant and McDowell to hold the rope while he put the girder in place, and when plaintiff reached a point under the girder, a knot plaintiff had tied in the rope on the block and tackle became untied and the girder dropped on plaintiff. Allegations concerning plaintiff's failure to use the derrick or gin pole in a good and safe manner need not be set forth in detail. Defendant alleged that the only connection he had with the operation was at the request and direction of the plaintiff. He denied any liability for the reasons: (1) That plaintiff was the owner of the block and tackle and had constructed the derrick, that plaintiff tied the knot which came untied, that plaintiff was in charge of the work and assumed the risk of the girder's falling; (2) that the injury was not caused through any negligence of defendant, but through the failure of the knot tied by plaintiff; (3) that plaintiff assumed the risk of the acts of his coservant McDowell; (4) that the injury was caused by plaintiff's walking under the suspended girder; (5) that the injury was caused by plaintiff's negligence in the operation of the derrick or gin pole; and (6) that plaintiff's own negligence was the proximate cause of his injuries. Plaintiff filed a reply consisting of a denial of new matter and a series of specific denials.

The following matters occurring during the course of the trial will be discussed later: 1. Defendant's objection to the introduction of any testimony and motion for judgment on the pleadings and the opening statement because of failure to allege or state facts sufficient to warrant further proceeding. 2. Defendant's motion, at the close of the evidence, for a directed verdict in his favor. 3. Plaintiff's motion to compel defendant to elect between inconsistent defenses. 4. Plaintiff's objection to instructions.

As a result of the trial the jury returned a general verdict for the plaintiff for $4,000 and answered special questions submitted as follows:

'Question No. 1. Do you find that the rope on the block and tackle came loose on the lower block causing the girder to fall? Answer: No.

'Question No. 2. Do you find that the knot in the rope in he lower block came untied? Answer: No.

'Question No. 3. Do you find that plaintiff either stepped or placed himself under the girder while it was suspended in the air? Answer: Yes.

'A. If you answer the foregoing in the affirmative: Was

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