Henderson v. Kansas Power & Light Co., 42274

• Decision Date: 13 May 1961
• Docket Number: No. 42274,42274
• Citation: 362 P.2d 60,188 Kan. 283
• Parties: Walter HENDERSON, Appellant, v. KANSAS POWER & LIGHT COMPANY, a Corporation, Appellee.
• Court: Kansas Supreme Court

Page 60

362 P.2d 60

188 Kan. 283

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

No. 42274.

Supreme Court of Kansas.

May 13, 1961.

Rehearing Denied June 9, 1961.

Syllabus by the Court

1. In the absence of a statute to the contrary, the general rule is that in a personal-injury action inadequacy of damages constitutes a ground for the granting of a new trial when a verdict, viewed in the light of the evidence as to the severity, duration, extent and permanency of the injuries, is so inadequate as to indicate passion and prejudice on the part of the jury.

2. The same yardstick is to be applied where it is claimed that a verdict is inadequate as in a case where a verdict is claimed to be excessive, and before a new trial will be granted because of the size of a verdict it must appear to be so excessive or inadequate, as the case may be, as to have been given under the influence of passion and prejudice.

3. G.S.1949, 60-3004, permits the granting of a new trial only of the issues as to which the verdict appears to be wrong, when such issues are separable.

4. In a personal-injury action, if, from the inadequacy of the damages awarded, in view of the evidence on the subject, or the conflict of the evidence upon the question of liability, or from other circumstances, the plain inference may be drawn that the verdict was the result of a compromise involving the question of liability, a new trial limited to the question of damages should not be granted but should be ordered generally upon all issues.

5. In an action to recover for severe and permanent personal injuries the jury found negligence on the part of defendant, no contributory negligence on the part of plaintiff, and returned a general verdict for plaintiff. Plaintiff appealed from orders overruling his motions for a new trial generally and for a new trial on the question of damages only, contending that the amount of damages awarded was grossly inadequate. The record is examined and considered, and, all as fully set forth in the opinion, it is held that a new trial should be granted generally as to all issues.

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

William B. McElhenny, Topeka, argued the cause, and M. F. Cosgrove, Robert E. Russell, Willard N. Van Slyck, Jr., O. R. Stites, Jr. and James L. Grimes, Jr., Topeka, were with him on the brief for the appellee.

PRICE, Justice.

The only question in this case is whether the verdict of the jury is so grossly inadequate as to compel the granting of a new trial--and, if so, should the new trial be limited to the question of damages only--or be granted generally as to all issues.

For reasons hereafter stated, the court is of the opinion that fundamental justice requires the granting of a new trial--and that it be generally as to all issues.

The action was to recover damages for severe and permanent injuries sustained by plaintiff as the result of burns and electrical shock when the television antenna and mast, which he was helping to install, came in contact with defendant company's high-voltage transmission line on September 26, 1954. Recovery was sought in the amount of $150,750.

Defendant filed a demurrer to the petition on the grounds it failed to state facts sufficient to constitute a cause of action, and that it disclosed contributory negligence as a matter of law. The demurrer was overruled, and defendant appealed. The ruling was affirmed (Henderson v. Kansas Power & Light Co., 181 Kan. 625, 313 P.2d 257).

Issues were joined and the case went to trial. At the conclusion of plaintiff's evidence the defendant's demurrer thereto was sustained on the grounds it was insufficient to establish that any of the alleged acts on the part of defendant were in fact negligent and that it did not establish that such acts were the cause of plaintiff's injuries. Plaintiff appealed. The ruling was reversed (Henderson v. Kansas Power & Light Co., 184 Kan. 691, 339 P.2d 702).

The allegations of the pleadings, and the evidence as to the alleged negligence on the part of defendant and the circumstances of the incident, introduced at the first trial, are summarized, respectively, in our two former opinions and will not be repeated.

At the conclusion of the second trial the jury returned a general verdict in favor of plaintiff in the sum of $5,000, and made special findings as follow:

'1. Do you find from the evidence that defendant was guilty of negligence? A. Yes.

'2. If your answer to question number one was in the affirmative then state of what such negligence consisted? A. By maintaining electric power lines over private property.

'3. Do you find the plaintiff guilty of negligence that contributed to his injuries? A. No.

'4. If your answer to question three was in the affirmative then state of what said negligence consisted? A.

'5. Did the plaintiff, Walter Henderson, see and know of the presence of defendant's transmission lines at 609 Lake Street before the accident? A. Yes.

'6. Do you find that the transmission lines of the defendant were located and maintained at a proper height? A. Yes, but over private property.

'7. Do you find that the defendant's lines were insulated? A. Bare wire but insulated by air.

'8. Do you find from the evidence that the defendant's lines cross over private property? A. Yes.

'9. If you answer the above in the affirmative did the owner of said private property:

'(a) Know that said lines cross his property? A. Yes.

'(b) Consent to the maintenance of said lines across his property? A. No.'

Defendant filed a motion for judgment notwithstanding the verdict.

Plaintiff filed a motion for a new trial generally, and one day later filed a motion for a new trial limited to the question of damages only.

All three motions were overruled, and judgment was entered on the verdict and special findings. Plaintiff has appealed from the orders overruling his motions for a new trial. Defendant has not cross-appealed.

Although several matters are discussed in the brief, counsel for plaintiff, upon oral argument of this appeal, conceded that he was making no complaint as to rulings on evidence or as to instructions given or refused. His sole contention is that the verdict in the sum of $5,000 is, under the undisputed evidence relating to the severity and extent of plaintiff's personal injuries, so inadequate that in the very nature of things it must be deemed to have been given under the influence of passion and prejudice, and thus compels the granting of a new trial. Putting it very bluntly, it is contended that if plaintiff is entitled to recover anything--and the jury found that he is--he is entitled to recover more than $5,000, and, all questions of negligence having been settled by the jury's findings--the new trial should be limited solely to the question of damages.

Understanding of our decision requires a rather detailed statement as to plaintiff's injuries.

The events of the tragic Sunday afternoon in question, September 26, 1954, have been summarized in the last-mentioned previous opinion of this court, above. Immediately following the explosion several persons in the neighborhood saw plaintiff and his companions lying on the ground. The grass and their clothing, as well as their bodies, were on fire, and they were 'all black looking.' There was a sickening odor of burning flesh. Plaintiff was the only one of the three men who was moving, and he was 'moaning and jerking as if in a convulsion.' He was taken to Stormont-Vail Hospital in Topeka and was placed, screaming and writhing, in a perambulator and fell off of it to the floor. His mouth was frothy and parts of his clothing were entirely burned, exposing the raw, red flesh burns on his body. Parts of his flesh were described as being 'burned to a crisp,' and his eyes appeared to be 'sticking out of his head.'

In the emergency room at the hospital he was given intravenous anesthetic because 'he was so wild when he came in they couldn't control him.' He also was given plasma and oxygen by an anesthesia machine because of respiratory paralysis, being unable to breath for himself. He had severe burns on his entire face, head, both arms, with burns from the fingertips to the shoulders, as well as severe burns on his chest, back and legs. On the bottom of his feet was a large dark area which was charred completely. He was removed from the emergency room to surgery where his clothing could be completely removed and as much destroyed tissue as could be removed at that time was removed. Pressure Vaseline gauze dressings were applied. He was described as appearing to have third degree burns over a large portion of his body, and the attending physicians 'thought he was actually going to die at that time.' He lost considerable fluid, his blood pressure went down to a low level, and he was given large quantities of intravenous glucose and plasma, and some blood. Two days later, and while still unconscious, he was removed to Winter Veterans Hospital in Topeka. His whole body felt 'as if he was on fire.' The doctors continued to give him blood plasma and glucose intravenously.

About ten days later he was transferred by ambulance to the Veterans Hospital at Kansas City, where he was taken into surgery and all dressings were removed. He had first and second degree burns involving both arms and hands; first, second and third degree burns of the back and parts of his chest; also first, second and third degree burns of both feet, primarily at the heels, and also of the toes of his left foot. Later, dead tissue was removed from his body and he was completely bandaged so that 'irrigating' could be accomplished by means of a salt water solution injected through catheters, all of which was very painful to the extent that he was quieted only through...