Lackey v. Price
| Citation | 378 P.2d 19,190 Kan. 648 |
| Decision Date | 26 January 1963 |
| Docket Number | No. 42726,42726 |
| Parties | Ernest LACKEY, Appellee, v. Jesse PRICE, Jr., and Bob Boltz, Appellants. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court
1. Although an appeal is taken from an order overruling a motion for a new trial--'trial errors'--that is, alleged errors relating to matters occurring at the trial for which a new trial was asked, are not subject to appellate review unless the order overruling the motion for a new trial is specified as error.
2. The doctrine of res ipsa loquitur is a rule of evidence--and not of substantive law--and it does not create an exception to the rule that negligence is never presumed but must be established by proof. Generally speaking, the doctrine has application to a situation where the exclusive management and control of the thing which produced the injury is vested in the defendant and the surrounding circumstances are such as to give rise to the inference that in the ordinary course of events the resulting injury would not have occurred except for the negligence of defendant--evidence of which the injured party is unable to produce and the facts of which are peculiarly within the knowledge of defendant.
3. In reviewing an order overruling a demurrer to the evidence or an order overruling a motion for a directed verdict--the rule is substantially the same, and this court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought. Where the evidence is such that reasonable minds could reach different conclusions thereon, the demurrer--or motion--must be overruled and the matter submitted to the jury.
4. In an action to recover for personal injuries resulting from the explosion of liquified petroleum gas, the record is examined and considered, and, all as fully set forth in the opinion, it is held: (1) The petition, framed on the theory of res ipsa loquitur, was sufficient to withstand the demurrer; (2) plaintiff's evidence was sufficient to make out a case under the theory of res ipsa loquitur and the demurrer thereto was correctly overruled, and (3) defendants' motion for a directed verdict at the close of all the evidence likewise was correctly overruled and the case was properly submitted to the jury.
D. Stewart Oswalt, Hutchinson, argued the cause, and Abraham Weinlood, Bill R. Cole and John H. Shaffer, Hutchinson, were with him on the brief for appellants.
Richard L. Ankerholtz, Lyons, argued the cause and was on the brief for appellee.
This was an action against defendants, Price and Boltz, for personal injuries sustained by plaintiff, Lackey, when a truck carrying liquified petroleum (LP) gas was involved in an explosion. The explosion occurred at a time when the truck was being washed by Boltz--an employee of Price--inside the service station owned and operated by Price.
The action was brought and tried under the theory of res ipsa loquitur. Judgment was for plaintiff, and defendants have appealed.
The theory of the case, as pleaded in the petition, was that at all times material the defendants were in sole and exclusive possession, management and control of the service station and of the truck involved in the explosion; that the explosion and resulting injuries to plaintiff was an occurrence which would not have taken place except for some act or acts of negligence of defendants in the handling and servicing of the truck, and that such acts of negligence, being unknown to plaintiff, were the direct and proximate cause of plaintiff's injuries.
Defendants' demurrer to the petition was overruled.
The answer admitted that the gaseous vapors escaped from the truck in question, denied negligence on the part of defendants, and alleged that plaintiff was guilty of assumption of risk and contributory negligence in entering the service station at the time he did; and further alleged that plaintiff's injuries were proximately caused by the negligence of the owner of the truck and his employees in delivering the truck to the service station in a defective condition in that valves on the hoses were not closed, and without first emptying or bleeding the hoses. It was further alleged the owner of the truck had failed to comply with rules and regulations of the office of state fire marshal relating to equipment for the handling of liquified petroleum gases.
At a pre-trial conference it was determined that plaintiff was relying on the theory of res ipsa loquitur, and that defendants relied upon the defense of assumption of risk, contributory negligence, and the negligence of third persons.
The following is a summary of plaintiff's testimony:
Plaintiff, a resident of Sterling, was an employee of one Johnson, the owner of the Sterling Butane Company. He was a truck driver and delivered LP gas to farmers in the area. He had been so employed for over three years. At about five o'clock in the afternoon on the date in question, December 1, 1958, he left his place of employment and went behind the Price Service Station, where he had parked his truck. Apparently the rear door of the service station was open, and Boltz asked him how to shut off the vale on the truck which was in the station. Plaintiff then looked inside the door and saw gas vapors on the floor under the truck. He recognized it as being LP gas and stated it looked like a heavy fog and was probably a foot high on the floor. He inquired of Boltz if all fires in the building were out. Boltz told him they were. Price then told him that he had checked the valves at the rear of the truck. Plaintiff then inquired if all doors and windows in the service station were open. Price and Boltz told him that they were open and asked him what remaining valves there were which should be closed. He told them there was one in the box, and he then went in the building and closed a valve on a hose which was in a box on the side of the truck. Just after he closed the valve he saw a flash, shut his eyes, and then went outside. He did not know the cause of the explosion. On the basis of his past experience with LP gas he knew that it was dangerous, but, nevertheless, he entered the building to shut off the valve with the idea in mind of helping the other persons in the building. He further testified as to the box on the side of the truck where the valve or valves were located--that the function the valve serves is to cut off gas from the main valve to the hose, and that with the valve open gas would be in the hose.
A summary of plaintiff's testimony on cross-examination follows:
The gas in question had explosive characteristics and a flame or spark would ignite it. Ordinarily heat without live flame or spark would not ignite it. Trucks belonging to his employer had been washed at the Price Service Station before. The first thing he saw when he looked in the rear door of the service station was the cloud or fumes or gas on the floor. He had driven the truck in the past. It was a 1958 truck which had two 600-gallon tanks mounted on it. The tanks were not new and had been transferred from an old truck. He immediately recognized the situation as being dangerous, but, nevertheless, entered the building and went directly to the box or cabinet on the side of the truck and closed the valve. After describing the two hoses rolled up in the cabinet on the side of the truck and details involved in bleeding hoses, he stated the hose should have been bled before the truck was driven into the building, the reason being that hoses sometimes burst. The fact that valves were open would mean that the hoses had not been bled.
Dwayne Miller testified for plaintiff, and a summary of his testimony follows:
He, like plaintiff, also was a truck driver for the Sterling Butane Company, and had been so employed for about six years. His duties were to deliver LP gas to customers and to fill tanks and tractors in the area. At noon on the day in question he had a conversation with one Moore, an employee of the Price Service Station, about getting the truck washed and greased. He took the truck to the service station at approximately 3:30 or 4:00 o'clock that afternoon. The truck was relatively new, but the tanks attached to it were approximately six years old. He was responsible for the maintenance of the truck and believed that it was in proper working condition. The tanks were approximately half full when the truck was brought to the station for servicing. Upon being asked what valves were closed when he left the truck at the service station he replied, 'I couldn't swear that any were closed, sir.' The hoses on the truck were approximately one year old, and when he left the truck at the service station he did not detect the odor of gas.
Upon cross-examination he testified that he had not bled the hoses before taking the truck in for servicing and, not having been bled, the hoses would have been full of gas at the time. So far as he knew the tanks were in good condition and had no leaks. It was possible that the gas which escaped came from a bursting hose, and he was the one who was responsible for the hoses. There would be less likelihood of a hose bursting if it were bled. Although not denying that he made the statement, he did not recall telling an agent of the state fire marshal's office that the explosion and fire were caused by a failure to bleed the hoses. He admitted that his present feeling was that under like circumstances he would never again fail to bleed hoses.
On redirect examination he was asked if he had closed either of the valves and his answer was, 'no.'
Mr. Johnson, the owner of the Sterling Butane Company, and who owned the truck and who was the employer of plaintiff and Miller, also testified for plaintiff. He said that Miller was in charge of the truck and that the hose on the truck was approximately one year old, and that the purpose of bleeding hoses was to reduce pressure. If a...
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