Kleppe v. Prawl

• Decision Date: 03 July 1957
• Docket Number: No. 40592,40592
• Citation: 181 Kan. 590,313 P.2d 227
• Parties: , 63 A.L.R.2d 175 Adam KLEPPE, Appellee, v. Webb PRAWL and Iowa Home Mutual Casualty Company, a Corporation, Appellants.
• Court: Kansas Supreme Court

Page 227

313 P.2d 227

181 Kan. 590, 63 A.L.R.2d 175

Adam KLEPPE, Appellee, v. Webb PRAWL and Iowa Home Mutual Casualty Company, a

Corporation, Appellants.

No. 40592.

Supreme Court of Kansas.

July 3, 1957.

Rehearing Denied Aug. 9, 1957.

Syllabus by the Court

The record examined in a tort action to recover damages for personal injuries sustained by plaintiff when defendant backed his truck and caused it to collide with a barn thereby pinning plaintiff between the rear of the truck bed and an upright timber of the barn, and it is held:

(1) The trial court did not err in overruling defendant's general demurrer or his special demurrer to plaintiff's first amended petition based on assumption of risk and contributory negligence.

(2) The trial court did not err in similar demurrers to plaintiff's evidence.

(3) It was not error to give defendant's requested instructions.

(4) The instructions given to the jury were proper.

(5) The trial court did not err in refusing to submit to the jury certain special questions requested by defendant.

(6) The trial court was correct in denying defendant's motion for judgment on the special findings and motion for new trial.

J. W. Lowry, Atchison, argued the cause, and Steadman Ball, Wm. E. Stillings, and Robert D. Caplinger, Atchison, and Jack R. Euler, Troy, were with him on the briefs for appellants.

Robert A. Reeder, and George T. Van Bebber, Troy, argued the cause and were on the briefs for appellee.

ROBB, Justice.

This is an appeal from a judgment based upon a jury's verdict in a tort action for damages as a result of personal injuries caused by a negligent wrongdoer.

For clarity in this opinion the plaintiff and defendant will be referred to as they were in the court below and it will not hereafter be necessary to mention the Iowa Home Mutual Casualty Company, defendant's liability insurance carrier, although it is, of course, one of the appellants.

The first amended petition, hereafter referred to as the petition, was challenged by a general demurrer and a special demurrer on the grounds the allegations thereof disclosed plaintiff, as an employee, voluntarily assumed the risk of his employment by defendant, and further, that plaintiff was guilty of contributory negligence proximately causing his injury and resulting damage. By reason of these demurrers we will briefly summarize the pertinent allegations of the petition which showed that defendant operated his cattle truck under licenses of the Interstate Commerce Commission and the Kansas Corporation Commission. On or about September 10, 1955, plaintiff, at his place of residence, was assisting defendant in loading hogs into defendant's truck. The hogs were owned equally by plaintiff and Lawrence Gilmore. Defendant had backed his truck to within approximately six feet of a barn doorway from which the hogs were to be loaded into the truck by means of a movable chute. Defendant saw the chute was too short and stated he would back up two feet further. Plaintiff was to stand behind the truck and tell defendant when he had backed 'a couple of feet.' As directed, plaintiff stood behind the truck while defendant backed it and when the approximate distance of two feet had been covered, plaintiff shouted for defendant to stop. Defendant paid no attention to plaintiff's shouted commands but continued carelessly and negligently to back the truck at an increasingly high rate of speed. Plaintiff yelled for him to stop but was ignored and the rearward motion of the truck was so quick, abrupt and in such complete contradiction of defendant's stated purpose to back only a couple of feet that plaintiff had no warning of danger and was unable to get out of the way. The defendant continued to back the truck until it struck the side of the barn and plaintiff was pinned between the stock bed of the truck and the framework of the barn. Plaintiff received serious injuries and lost consciousness.

Then followed allegations showing the injuries and all the elements of damages suffered by the plaintiff as a result of such injuries. Suffice it to say without detailing them the alleged injuries and damages were well and fully pleaded.

The section of the demurrer having to do with the elements of a general demurrer does not merit our laboring therewith and we will pass on to the discussion of the special demurrer since it raises the material questions.

We shall consider the questions raised by the special demurrer in the order in which they appear therein, notwithstanding they were treated in reverse order by the parties in their briefs. As has been frequently stated, a cardinal rule of this court is that in determining the sufficiency of a petition when attacked by demurrer, any defect must be made to appear on the face of the pleading. Anderson Cattle Co. v. Kansas Turnpike Authority, 180 Kan. 749, 308 P.2d 172; Robinson v. Muller, 181 Kan. 150, 309 P.2d 651.

Was plaintiff an employee of defendant? While the first phase of the special demurrer is limited to assumption of risk because plaintiff was an employee of defendant, the parties undertake to cover the field of voluntary assumption of risk in their briefs but we see very little, if any, difference between the application of the rule to an employer and employee situation than in any other relationship. Defendant contends that an employee may have a general employer and also a special employer at the same time. We have no quarrel with him on that point because we have so held in Smith v. Brown, 152 Kan. 758, 761, 107 P.2d 718; Beitz v. Hereford, 169 Kan. 556, 220 P.2d 135; Bright v. Bragg, 175 Kan. 404, 264 P.2d 494. These cases could be supplemented by many more but they are sufficient. This contention, however, does not end the matter. The petition does not affirmatively show that plaintiff was an employee of defendant under the requirements for establishment of that relationship as they are set out in Beitz v. Hereford, supra.

Defendant argues the danger here was inherent and obvious and relies on the closely divided opinion of this court in Horton v. Atchison T. & S. F. Ry. Co., 161 Kan. 403, 168 P.2d 928, but an examination of that case, which involved a railroad crossing with a string of boxcars on each side of the intersecting highway, fails to show the analogy between that case and this one. On this point our attention is also directed to Carrier v. Union Railway Co., 61 Kan. 447, 59 P. 1075, where a brakeman slipped and fell on snow while undertaking to couple one portion of a train to another when the train was moving. His leg was run over and crushed. That case is closer to the one under consideration than was the Horton case but yet it is not so analogous as to be controlling here. Another authority relied upon by defendant is Cooper v. Southwestern Bell Telephone Co., 159 Kan. 67, 151 P.2d 692, wherein the plaintiff was an office employee who had objected to a slack telephone cord which had been installed by the defendant company but plaintiff continued to walk close to the cord until her foot was caught in it causing her to fall and receive injury. There we find the rule (quoted from Sweet v. Union Pac. Railroad Co., 65 Kan. 812, 70 P. 883, also cited by defendant) that,

"One who, knowing all the danger and peril of pursuing a given course and being under no compulsion to encounter the same, freely and voluntarily continues therein, cannot recover damages for injuries he may suffer." 159 Kan. at page 69, 151 P.2d at page 693.

In the Cooper case the following cases were cited by plaintiff: Walmsley v. Rural Telephone Association, 102 Kan. 139, 169 P. 197; Carlisle v. Union Public Ser. Co., 137 Kan. 636, 21 P.2d 395; Worley v. Kansas Electric Power Co., 138 Kan. 69, 23 P.2d 494; and this court, in distinguishing those cases from the Cooper case, said,

'In each of those cases the person injured had no knowledge or notice of the danger which eventuated in his injury. In the instant case, plaintiff was keenly aware of the danger of tripping over the telephone wire--even if it be assumed that it had been negligently placed by the telephone company at the location to which plaintiff objected from the inception of her employment.' (Our emphasis.) 159 Kan. at pages 69, 70, 151 P.2d at page 693.

It can thus be seen that the Cooper case has already been distinguished from the one here involved.

Another case cited by defendant (Stevens v. Allis-Chalmers Mfg. Co., 151 Kan. 638, 100 P.2d 723) involved a farmer of many years' experience who was injured while handling certain farm implements which had a revolving universal joint as a part of a take-off power shaft. He sought to control the machinery by a manifestly dangerous and unusual method and he was thereby injured, but he could not recover because of his assumption of risk. This case dealt with inherent and latent or patent defects in a product for which a manufacturer would or would not be liable if injury proximately resulted therefrom. We are not inclined to consider that case as controlling here.

Other cases wherein the doctrine of the assumption of risk was raised by demurrer to defeat a tort action for negligence are Davis v. City of El Dorado, 126 Kan. 153, 267 P. 7; Parker v. City of Wichita, 150 Kan. 249, 92 P.2d 86; and similarly in a compensation case (Lively v. Chicago, R. I. & P. Railway Co., 115 Kan. 784, 225 P. 103).

In all these cases it is apparent the doctrine applies only where there is knowledge and appreciation of the danger and peril (Railway Co. v. Bancord, 66 Kan. 81, 71 P. 253). Coupled with such knowledge and appreciation there must be an element of voluntarily placing oneself in the way of such danger and peril. 38 Am.Jur., Negligence, § 173, pp. 847, 848.

While assumption of risk is somewhat akin to contributory negligence, these two doctrines of law are not synonymous because assumption of risk arises through implied contract of assuming the risk of a known danger; the essence of...