Henderson v. Kansas Power & Light Co.

• Decision Date: 06 April 1963
• Docket Number: No. 43177,43177
• Citation: 380 P.2d 443,191 Kan. 276
• Parties: Walter HENDERSON, Appellant, v. KANSAS POWER & LIGHT COMPANY, a Corporation, Appellee.
• Court: Kansas Supreme Court

Page 443

380 P.2d 443

191 Kan. 276

Walter HENDERSON, Appellant, v. KANSAS POWER & LIGHT COMPANY, a Corporation, Appellee.

No. 43177.

Supreme Court of Kansas.

April 6, 1963.

Rehearing Denied May 17, 1963.

Syllabus by the Court

1. Contributory negligence is conduct on the part of a plaintiff which falls below the standard to which he should conform for his own protection and which is a legally contributing cause, cooperating with the negligence of the defendant, in bringing about the plaintiff's harm. It is conduct which falls short of the standard to which a reasonable man should conform in order to protect himself from harm. Following Cruse v. Dole, 155 Kan. 292, 124 P.2d 470.

2. If the jury's special findings of fact are inconsistent with the general verdict and consistent with each other, the special findings control the general verdict and the district court may give judgment based upon the special findings. (G.S.1949, 60-2918.)

3. In an action for damages for personal injury, the general verdict and answers to special questions are considered, and it is held: That the answers to special questions, though general in nature, are not conclusions of law but constitute a complex finding based upon the pleadings, the evidence, and the instructions, that the plaintiff failed to exercise ordinary care for his own safety and that such negligence was a contributing cause in producing his injuries. It is further held: That the answers to special questions are consistent with each other but are inconsistent with the general verdict for the plaintiff, and the district court did not err in sustaining the defendant's motion for judgment notwithstanding the general verdict.

Elwaine F. Pomeroy, Topeka, argued the cause, and Wendell L. Garlinghouse, Warren W. Shaw, William Hergenreter and Carl Quarnstrom, Topeka, were with him on the briefs for appellant.

Robert E. Russell, Topeka, argued the cause, and Harry W. Colmery and Lawrence D. Munns, Topeka, were with him on the briefs for appellee.

FATZER, Justice.

This was an action for damages for personal injuries sustained by plaintiff who was burned by electrical shock and severely and permanently injured on September 26, 1954, when a television mast which he was helping install came in contact with the defendant's 33,000 volt three-phase uninsulated transmission line.

This is the fourth appearance of this case. The first appeal concerned the sufficiency of plaintiff's petition and whether it disclosed plaintiff's contributory negligence as a matter of law. It was held that it did not, and the district court's judgment overruling the demurrer was affirmed. (Henderson v. Kansas Power & Light Co., 181 Kan. 625, 313 P.2d 257.) The case proceeded to trial to a jury and at the conclusion of plaintiff's evidence the defendant's demurrer thereto was sustained, which was reversed by this court and the cause was remanded for a new trial. (Henderson v. Kansas Power & Light Co., 184 Kan. 691, 339 P.2d 702.) The case was retried to a jury which returned a general verdict in favor of the plaintiff in the sum of $5,000, and made special findings, one of which was that the plaintiff was not guilty of negligence that contributed to his injuries. The plaintiff appealed from that judgment on the ground that the verdict was so grossly inadequate as to compel the granting of a new trial. That question was considered in the third appeal (Henderson v. Kansas Power & Light Co., 188 Kan. 283, 362 P.2d 60), and a new trial was granted generally as to all issues raised by the plaintiff's amended petition and the defendant's amended answer.

This appeal arises out of a third jury trial which resulted in a verdict for the plaintiff in the amount of $5,000, a verdict in exactly the same amount as was awarded by the jury in the preceding trial. However, one substantial difference in the verdict in this trial was the answers to special questions. Five special questions were submitted and those questions and the jury's answers thereto are as follows:

'1. Do you find the defendant company guilty of any negligence which proximately caused the injuries of plaintiff?

'A. Yes.

'If you answer this question in the negative, you need not answer any of the remaining questions.

'2. If you answer No. 1 in the affirmative, state of what such negligence consisted.

'A. They were negligent by putting their lines over private property and for not posting signs.

'3. Do you find that the plaintiff was guilty of any negligence which contributed to his injuries?

'A. Yes.

'4. If your answer to the foregoing is in the affirmative, state of what such negligence consisted.

'A. He was negligent for not exercising ordinary care for his own safety.

'5. Do you find that a proximate cause of the accident was the negligence of parties other than plaintiff or defendant in this case?

'A. They were negligent for not exercising ordinary care for their own safety.'

Immediately after the jury returned its verdict and answers to special questions, the following colloquy occurred:

'The Court: Gentlemen, are there any other matters to be taken up? If there are will you approach the bench first?

'Mr. Russell: Not right at the moment, if Your Honor please.

'The Court: Before we dismiss the jury?

'Mr. Russell: No.

'Mr. Garlinghouse: No, Your Honor.

'Mr. Russell: No.

'The Court: No matters to be taken up before I dismiss this jury?

'Mr. Russell: No.'

After the court accepted the verdict and discharged the jury, the defendant filed two motions; the first was for judgment notwithstanding the general verdict, 'for the * * * reason that the answers to the special questions show that the defendant is entitled to judgment,' and the second was for a directed verdict 'based upon the jury's answers to the special questions and in particulars the answers to Nos. 3 and 4.' The plaintiff filed a motion for a new trial generally, a motion for a new trial limited to the question of damages only, and a motion to set aside answers to special questions Nos. 3, 4 and 5 for the following reasons: (1) that they were 'mere conclusions of law by the jury rather than any findings of fact'; (2) that they were 'definitely general in character and purely in the nature of conclusions only'; (3) that they were 'surplusage and are mere conclusions of law'; (4) that they were 'inconsistent with the general verdict, and being mere conclusions of law do not affect the general verdict,' and (5) that they were 'unsupported by the evidence and are contrary to the evidence.'

The various motions of the parties were briefed and argued, and the court, in a memorandum opinion, concluded that the jury's special findings were inconsistent with the general verdict and not inconsistent with each other and therefore controlled the judgment, and it sustained the defendant's motion for judgment notwithstanding the general verdict. All other post-trial motions were overruled.

Despite the fact that the amended petition was quoted and summarized in the first appeal, it is deemed essential at this juncture that a brief reference be made to the pleadings of the parties to illuminate the issues presented to the jury. The amended petition alleged that plaintiff's injuries were caused by defendant's negligence in (1) maintaining high tension electrical wires over private property without the permission of and without obtaining an easement from the owner, thereby creating a highly dangerous hazard; (2) erecting and maintaining the power line in a residential area without insulating the electric wires; (3) maintaining the power line without posting warning signs as to its nature and extreme danger, and (4) erecting and maintaining the power line at a height insufficient to avoid contact with a radio or television antenna.

The defendant's answer denied the pertinent allegations of plaintiff's amended petition and alleged as one of its defenses, the following:

'5. That the negligent acts of the said plaintiff, Walter Henderson, and the others who were working with him at the time and place hereinabove described, were as follows:

'A. Failure to use ordinary prudence and exercise ordinary care or to take any precaution for his own safety under the obvious circumstances and conditions that existed at the time of the accident, as above set forth, which conditions he either saw or knew, or by the exercise of ordinary care for his own safety could have seen and known.' (Emphasis supplied.)

Six other grounds of contributory negligence were alleged.

We are advised that after the defendant filed its amended answer, the plaintiff filed a motion to make definite and certain and to strike. Nowhere in the motion did plaintiff attack the defendant's allegations of contributory negligence and at no time during the trial did the plaintiff contend that this allegation of specific contributory negligence was improper.

We also note that the court in instructing the jury upon the respective claims of the parties, read to the jury substantially verbatim the above quoted allegation of defendant's amended answer, and it instructed the jury in part as follows:

'INSTRUCTION 2.

'You will observe in this case that the plaintiff is asking for judgment against the defendant on account of alleged negligence of the defendant, and you will also observe that the defense of contributory negligence is made by the defendant against the plaintiff. These claims of the parties make it necessary for the court to define to you what negligence is. 'Negligence' is the want of ordinary care; that is, the care which an ordinarily prudent person would exercise under the same or similar circumstances. Negligence may consist of acts of commission or acts of omission. When a person does what an ordinarily prudent person would not be expected to do under the circumstances of the situation, he is said to be negligent; and when a person fails to do what an ordinarily prudent person would be expected to do ...