Kniffen v. Hercules Powder Co.

• Decision Date: 24 January 1948
• Docket Number: 36995.,36894
• Citation: 188 P.2d 980,164 Kan. 196
• Parties: KNIFFEN v. HERCULES POWDER CO. et al.
• Court: Kansas Supreme Court

188 P.2d 980

164 Kan. 196

KNIFFEN v. HERCULES POWDER CO. et al.

Nos. 36894, 36995.

Supreme Court of Kansas

January 24, 1948

Appeal from District Court, Wyandotte County; Russell C. Hardy Judge.

Action by Joseph E. Kniffen against Hercules Powder Company and another for personal injuries and property damages. From an order denying their joint general demurrer to plaintiff's evidence, an order overruling their motion for judgment on the pleadings and opening statement, and an order overruling their motion for directed verdict defendants appeal, and from an order granting defendants' motion for a new trial, the plaintiff cross-appeals.

Syllabus by the Court

1. In order for a petition to state a cause of action for the recovery of damages based on the willful and wanton conduct of a defendant it is not necessary that the petition employ the precise words 'willfully' and 'consciously', or words of similar import, if the facts pleaded reasonably show or tend to disclose such a mental attitude.

2. Degrees of negligence have been abolished in this state. Wantonness is distinct from negligence and differs in kind.

3. In an action to recover damages on the theory of willful and wanton conduct it is essential that the actor shall have realized the imminence of injury to others from his acts and that he refrained from taking steps to prevent the injury because of his indifference to the consequences.

4. Contributory negligence is not a defense to defendant's willful or wanton conduct but willful or wanton conduct of a plaintiff is a defense to defendant's wantonness.

5. Laws of this state and decisions construing them rendered prior to the acquisition of title to land in this state by the federal government remain in effect and determine the rights of parties with respect to torts committed thereon until abrogated by the federal government.

6. The term 'railroad' standing alone ordinarily refers only to ordinary commercial railroads for the transportation of freight and passengers as distinguished from a private tramway or railroad used only in the conduct of another business.

7. A person crossing the track of a railroad which is not a public carrier for the transportation of passengers and freight but is used operated and controlled as a private enterprise, is not governed by the rules pertaining to the crossing of a track of a commercial railroad or public carrier but such person is required to exercise reasonable care for his own safety in view of all the facts and circumstances involved.

8. In view of facts narrated in the opinion the trial court, in considering defendants' motion for a new trial, properly considered defendants' requested instructions although such request had not been signed as required by G.S.1935, 60-2909.

9. This court will not reverse an order granting a new trial which was based on the trial court's failure to give parts of requested instructions which were proper but were not included in those given, although the trial court expressed doubt concerning the accuracy of the requested instructions in their entirety.

10. Plaintiff's cross-appeal was solely from the order granting defendants' motion for a new trial and plaintiff is not entitled to a review of other alleged trial errors of which he now complains.

11. The verdict of the jury having been vacated by the order granting a new trial, other alleged trial errors urged by defendants on their subsequent cross-appeal need not be considered.

Blake A. Williamson, of Kansas City (James K. Cubbison and Lee Vaughan, both of Kansas City, on the briefs), for appellants.

Leonard O. Thomas, of Kansas City (Arthur J. Stanley, Arthur J. Stanley, Jr., J. E. Schroeder and Lee E. Weeks, all of Kansas City, and George W. Meyer, of Kansas City, Mo., on the briefs), for appellee.

WEDELL Justice.

This was an action to recover damages to property and for injuries to a person resulting from a collision between an automobile and a railroad engine operated by the Hercules Powder Company.

The defendants are Hercules Powder Company and Louis Mize, its engineer of a Diesel engine. The defendants and the plaintiff have both appealed. The first appeal by the defendants is from (1) an order overruling their joint general demurrer to plaintiff's evidence; (2) the order overruling their motion for judgment on the pleadings and opening statement; and (3) the order overruling their motion for directed verdict.

No final judgment has been rendered. The trial court sustained defendants' motion for a new trial. Plaintiff filed no motion for a new trial but has cross-appealed from the order granting defendants' motion for new trial and in his cross-appeal endeavors to have certain alleged trial errors reviewed. Subsequent to the filing of that cross-appeal defendants have cross-appealed and seek to have certain alleged trial errors reviewed in addition to the order overruling the demurrer to plaintiff's evidence.

Before proceeding with a discussion of the ruling on the demurrer we shall shate the issues joined by the pleadings.

Plaintiff's petition was based not only on the alleged negligence of defendants but also on the alleged reckless and wanton conduct of the engineer. Defendants' answer likewise charged plaintiff with negligent, reckless and wanton conduct. After all evidence of the parties was introduced and they had rested plaintiff, in response to defendants' instant and previous motion, elected to abandon the negligence theory and to stand on the theory of the engineer's reckless and wanton conduct. However, prior to such election and at the time defendants lodged their general demurrer to plaintiff's evidence the issues were those previously stated. If only negligence of defendants and contributory negligence of the plaintiff had been alleged it, of course, would have been only necessary for the evidence to show defendants' negligence and lack of plaintiff's contributory negligence in order to establish a cause of action. Plaintiff, however, does not attempt to uphold the ruling on such a theory but insists the ruling was correct by reason of (1) defendants' wanton conduct and (2) the absence of wantonness on plaintiff's part. The reason for plaintiff's contention appears obvious as contributory negligence, if it existed, is not a defense to wantonness. Consolidated City & C. P. Railway Co. v. Carlson, 58 Kan. 62, 48 P. 635; Atchison, T. & S. F. Railway Co. v. Baker, 79 Kan. 183, 98 P. 804, 21 L.R.A.,N.S., 427; Jacobs v. Railway Co., 97 Kan. 247, 253, 154 P. 1023, L.R.A.1916D, 783, Ann.Cas.1918D, 384; Frazier v. Cities Service Oil Co., 159 Kan. 655, 157 P.2d 822; Elliott v. Peters, 163 Kan. 631, 636, 185 P.2d 139. Wanton conduct of a plaintiff is, however, a defense to a defendant's wantonness. Restatement, Torts, vol. 2, § 503. 4 Blashfield's Cyc. Automobile Law & Practice, Perm.Ed., Pt. 2, states: 'In the absence of statute, it has been held that a plaintiff who is guilty of willful or wanton conduct, which contributed to his injury, cannot recover, although defendant was guilty of willful or wanton conduct also.' (§ 2776.)

We shall now consider the order overruling defendants' demurrer. It is, of course, elementary that in doing so all of the evidence is admitted to be true and only the evidence most favorable to the plaintiff is considered.

In order to avoid confusion we shall continue to refer to the parties as plaintiff and defendants and shall refer to the separate defendant, Hercules Powder Company, as Hercules.

The material portions of plaintiff's evidence, in substance, disclosed:

Hercules was engaged in the manufacture of powder, dynamite and other explosives and operated, maintained and controlled a large plant, known as the Sunflower Ordnance Works, near De Soto, Kansas, for the manufacture of such explosives; in connection therewith it maintained and operated a railroad on the promises for the transfer of commodities and goods in and about the plant; it also maintained a certain highway known as Springtown road which extended in a southerly direction from state highway No. 10 and led through and near the plant; Springtown road intersected the railroad at three places; the defendant Mize at all times in question was an employee of Hercules and as such operated a Diesel engine on the railroad moving cars at the direction of Hercules; the Sunflower Ordnance Works was divided into areas, one known as the vital area where explosives were manufactured and the other as the outside area; the vital area was fenced; all areas were patrolled by Hercules guards including the Springtown road over which the railroad passed and where the accident in question occurred in the outside area; Hercules controlled the speed of automobile and railroad traffic within the entire area.

Other material portions of plaintiff's evidence, in substance, disclosed:

Facilities of the plant were being extended by the construction of additional buildings; the construction work was being done by Wm. S. Lozier, Inc.,--Broderick and Gordon; the plaintiff was one of its employees and on the date of the accident, January 31, 1945, was employed at the job haul office he had driven over the crossing in question since the middle of the summer in 1943; plaintiff's employer had between five and six thousand persons working on construction jobs at the time; practically all of them used the same crossing when coming to work between the hours of 7 and 8 a. m.; they used the same crossing when returning home at the end of the shift; many materials and supplies were also transported over the same crossing; on the morning of the accident plaintiff was hauling four other employees in conformity with the 'share the ride' program; under that program cars averaged about...