Glenn v. Montgomery Ward & Co.

• Decision Date: 10 November 1945
• Docket Number: 36402.
• Citation: 160 Kan. 488,163 P.2d 427
• Parties: GLENN v. MONTGOMERY WARD & CO.
• Court: Kansas Supreme Court

163 P.2d 427

160 Kan. 488

GLENN v. MONTGOMERY WARD & CO.

No. 36402.

Supreme Court of Kansas

November 10, 1945

Appeal from District Court, Wyandotte County, Division No. 1; E. L Fischer, Judge.

Appeal from District Court, Wyandotte County, Division No. 1; E. L Fischer, Judge.

Action by Rosa Glenn against Montgomery Ward & Co. to recover for personal injuries alleged to have resulted from defendant's negligence. Judgment for plaintiff, and defendant appeals.

Judgment set aside with directions to enter judgment for defendant.

Syllabus by the Court.

1. Our statute (G.S. 1935, 60-3302) makes a ruling of a trial court upon a demurrer an appealable order. It is a ruling upon a question of law as distinct from a question of fact. A motion for a new trial is not necessary in order to perfect an appeal from such a ruling.

2. In an action for damages, where essential elements of a petition are controverted by the pleadings and not established by proof, a demurrer to the evidence should be sustained.

3. In an action for damages for personal injuries where the jury answers special questions and returns a verdict for plaintiff, and the answers to the special questions disclose that plaintiff's injury resulted from a lack of due care on his part, they are inconsistent with the general verdict and control it (G.S.1935, 60-2918), and judgment should be rendered for defendant upon his motion therefor. In such a case, where such a motion is denied, it is not necessary for defendant to file a motion for a new trial in order to perfect an appeal from such ruling.

Douglas Stripp, of Kansas City, Mo., (Blake A. Williamson, James K Cubbison, and Lee Vaughan, all of Kansas City, on the brief) (Watson, Ess, Groner, Barnett & Whittaker, all of Kansas City, Mo., of counsel), for appellant.

David F. Carson and David W. Carson, both of Kansas City, for appellee.

HARVEY Chief Justice.

This was an action for damages for personal injuries alleged to have resulted from defendant's negligence. The jury answered special questions and returned a verdict for plaintiff for $500, upon which judgment was rendered. Defendant has appealed and contrends (1) that its demurrer to plaintiff's evidence should have been sustained, and (2) that its motion for judgment on the answers to the special questions notwithstanding the general verdict should have been sustained.

The locale of plaintiff's injury may be described as follows: The defendant operates a large retail mercantile store at the northwest corner of Minnesota Avenue and Seventh Street in Kansas City. The main building is a three-story brick facing south on Minnesota Avenue with a width of 100 feet. The ground occupied by defendant extends through to State Street on the north. On the northwest corner of Seventh and State Streets there is a filling station, and directly west of it defendant has the use of a vacant lot where customers of the store may park their automobiles. The main building extends from Minnesota Avenue north to about 80 feet of the north end of the lot. At the north end of the main building defendant has a one-story brick building about 26 feet wide and 50 feet long extending along Seventh Street, which it uses as a place to service equipment it sells. This has large double doors, like those used on a garage, both on the east and west sides. These are about 18 feet wide. Across the north end of the main building is a loading dock about 13 feet wide and perhaps three feet high. The area of the lots north of the loading dock and west of its service room is a paved court extending north about 70 feet to State Street. Along the west of this paved court is a cement wall about three feet high. There is a driveway entrance into this court from the north on State Street. The principal purpose of the court and loading dock is for trucks to drive in with merchandise to be unloaded on the dock, or for the loading of merchandise into trucks or cars to be sent away. Some customers of the store use the paved court, parking their cars on the west facing the wall, or if there is room on the south of the court facing the loading dock. At the west end of the loading dock there are steps from the dock down to the paved court. The loading dock has a canopy over it, and perhaps 10 feet above it, as a protection from rain or snow, and about the center of this canopy there is a row of lights on the underside of it extending along the canopy from east to west. These are equipped with 100 watt electric light bulbs. On the parking north of the paved court and directly west of the driveway into it there is a street light, and across State Street at the filling station there are flood lights. Good lights are used in the service station on the east side of the court, and when the west doors of the service station are open the lights aid in lighting up the court. When cars are parked on the paved court up next to the loading dock the lights in the ceiling at the loading dock cast some shadow back or north of the cars parked against the loading dock.

In her petition plaintiff described the location of the premises and alleged that on April 20, 1940, about 8 o'clock p. m., just after dark, she was a customer of defendant's store and parked her car at the rear thereof and entered the store; 'that while plaintiff was in said store defendant sold pipes to a customer,' whose name plaintiff did not know but who 'had his car parked immediately back of said loading dock or in the parking space, controlled, owned and operated by defendant as aforesaid, and that said defendant caused, permitted and allowed said customer to pile the pipes sold to him underneath his car which was a truck. That these pipes were piled or swung from the truck four to six inches above the ground and that said truck was not there when plaintiff entered said building and no pipes were there. That she was in the store about three minutes to bring back her purchases and put them in her car when she tripped over the pipes' and fell, causing her injuries, which were described. She alleged defendant was negligent in that it caused, permitted and allowed its customers, and particularly the one in question, to swing or pile the pipes beneath the truck, parked as aforesaid, and so close to the surface of the ground as to be dangerous to customers of defendant passing to and fro back of the parking space, and neglected to in any manner light the space or to warn persons in the use thereof of any dangers from the use of the parking space, and neglected to in any manner warn persons of any danger from passing to and fro across the same, and neglected to provide a safe exit for plaintiff from the store and a safe passage to her car parked in the rear thereof. Defendant's answer contained a general denial and allegations to the effect that if plaintiff sustained any injury at the time and place in question the same resulted from her own lack of due care. At the beginning of the trial it was agreed between the parties that a reply had been or would be filed. The record does not show that a reply was filed.

Plaintiff testified that she was a resident of Kansas City and a customer of defendant and gave a general description of its premises. She had purchased merchandise from defendant which needed altering and went to get it the evening of April 20 1940, about 8 o'clock, just after darkness had fallen. She drove her car onto the parking court from State Street and parked it facing the loading dock near the east end of it. Other cars were parked along the dock west of hers, and there were other cars within the paved court. She got out of her car, walked west behind the cars parked along the loading dock, and up the steps on to the loading dock, which was lighted by the lights from the overhead canopy, and into the store. She got her merchandise, which was ready for her, and went back to her car, following the route she had taken to go into the store. When she reached her car she found she did not have her car keys, and remembered she had laid them on the table where she had picked up her merchandise in the store. She promptly went back into the store along the same route she went the first time, found her keys where she had remembered leaving them, and started back to her car along the same route she had traveled previously. As she was walking behind the cars parked facing the loading dock she fell forward. She used the term 'sprawled' in describing the way she fell. She was severely shaken up; her hands and one knee appear to have struck the pavement first. The hands were bruised, but became normal soon. One knee was cut, bled profusely, and still troubled her at the time of the trial. Since, if plaintiff...