Lee v. Kansas City Public Service Co.
| Decision Date | 10 June 1933 |
| Docket Number | 30958. |
| Citation | 137 Kan. 759,22 P.2d 942 |
| Parties | LEE v. KANSAS CITY PUBLIC SERVICE CO. et al. [*] |
| Court | Kansas Supreme Court |
Syllabus by the Court.
In action for injuries sustained by boy in collision between street car and milk wagon on which boy assisted driver special findings held to acquit street car company of negligence, rendering judgment against it on general verdict erroneous.
Boy under 14 years of age, employed by driver of milk wagon to assist in distributing milk, with milk company's knowledge and tacit consent, held not employee of milk company within Workmen's Compensation Act (Rev. St. 1923 38--691, 44--508 (i).
Boy employed by driver of milk wagon to assist in distributing milk, with knowledge and tacit consent of milk company, held invitee of milk company, requiring latter to exercise reasonable care towards boy.
Whether boy employed by driver of milk wagon to assist in distributing milk was contributorily negligent at time milk wagon was struck by street car, in attempting to get on wagon, held question for jury.
1. In an action for damages sustained by a 13 year old boy in a collision between a street car and a milk wagon, the pleadings, the evidence, and the special findings considered and held that the special findings of the jury acquitted the street car company of negligence, and the judgment entered against it on the general verdict was erroneous and should be set aside.
2. Notwithstanding the plaintiff was employed by the driver of the milk company's wagon to assist him in distributing milk, and the milk company knew of such employment and tacitly consented thereto, the relation of employee and employer did not exist between plaintiff and the milk company within the terms of the Workmen's Compensation Act.
3. Under the circumstances of plaintiff's employment by the driver of the milk company's wagon, plaintiff was an invitee of the milk company, to whom the latter owed the duty of reasonable care, and a breach of that duty rendered the milk company liable to him in damages.
4. Under the peculiar circumstances of the accident in which plaintiff was injured, neither the facts in evidence nor the jury's special findings disclosed so clearly that plaintiff was guilty of contributory negligence as to justify or require the taking of that question from the jury.
5. Other objections to the judgment against the milk company considered and not sustained.
Appeal from District Court, Wyandotte County, Division No. 2; Clyde C. Glandon, Judge.
Action by Jack Edward Lee, a minor, by J. H. Gilbert and another, as next friends, against the Kansas City Public Service Company and the Meyer Sanitary Milk Company. From a judgment in favor of the plaintiffs, the defendants appeal.
Judgment reversed as to the defendant the Kansas City Public Service Company, and judgment affirmed as to the Meyer Sanitary Milk Company.
Edwin S. McAnany, Maurice L. Alden, and Thos. M. Van Cleave, all of Kansas City, for appellant Kansas City Public Service Co.
David F. Carson and O. Q. Claflin, Jr., both of Kansas City, for appellant Meyer Sanitary Milk Co.
Arthur J. Mellott, George E. Gard, and Hugh E. Brownfield, all of Kansas City, for appellee.
The plaintiff, a minor, brought this action by next friends to recover damages for injuries sustained in a collision between a street car and a milk wagon which occurred at a street intersection in Kansas City on a win try morning before daylight in January, 1931.
The defendant the Meyer Sanitary Milk Company was engaged in the distribution of milk. It owned teams and milk wagons and hired drivers to deliver milk throughout the city. With the knowledge and acquiescence of the milk company, these drivers had a custom of hiring boys to accompany them on their routes to assist in the delivery of milk to customers. One of these drivers was Clinton Smith. The milk company furnished him with a team of mules and a wagon equipped to hold 600 bottles of milk. The wagon had a door on each side, and there were small panels of glass all around it, and a lantern was lit and hung inside. Smith's milk route was in the northwest part of the city where Twenty-Sixth street, which runs north and south, intersects the street railway of defendant, the Kansas City Public Service Company, which runs east and west adjacent to and parallel with New Jersey avenue.
Immediately north of this intersection, Twenty-Sixth street slopes toward the south. On approaching this intersection from the north, the view of a street car coming from the east is somewhat shortened owing to the contour of the intervening ground.
The plaintiff, who was about 13 years and 4 months old, had resided with his grandfather since babyhood a short distance from this intersection. For several months he had been employed by Clinton Smith to help in distributing milk. Smith paid him 50 cents for each trip. Sometimes Smith also employed Bernie Bray, a boy of 16 years. The latter was present on the occasion of present concern. The two boys arose about midnight and arrived at the milk company's plant about 1 o'clock. Plaintiff helped Clinton Smith hitch up the mules and load milk cases into the wagon. Smith and the two boys then set out to deliver milk. The mules were well broken and taught to stop when the brake was set and to start when it was released. Smith delivered milk on the left side of the street and the two boys on the right. Coming south on Twenty-Sixth street the team was stopped about 20 feet from the tracks of the street railway while Smith delivered milk on the east side of the street and the two boys on the west. Bernie Bray first returned to the wagon. About that time the brake was released and the mules started. Smith got in on the left side of the wagon, shutting the door with one hand and seizing the reins which hung overhead with the other. About the same time plaintiff reached the right side of the wagon and put one foot on the step as the team started to cross the railway track. About that time a street car which came from the east struck and upset the milk wagon. Plaintiff fell under it, and was severely and permanently injured.
Plaintiff's petition recited the pertinent facts, and charged both street car company and milk company with negligence in various specified particulars.
The street car company answered with a general denial and a plea of contributory negligence. It also alleged that plaintiff was engaged in a joint enterprise with the other occupants of the milk wagon and that the negligence of any of them was the negligence of all.
The milk company's answer contained a general denial, and alleged that Clinton Smith had no authority to employ plaintiff, and: "That any injuries plaintiff may have received were because of his own fault and neglect; that he climbed on the outside of defendant's wagon without the knowledge or consent of defendant, and assumed whatever risk might be incident to the position in which he was riding; that he could have alighted from the wagon in plenty of time to have avoided the injuries he complained of; that he loosened the brakes of the wagon which caused it to start before the driver was in place thereon, and thereby caused and directly contributed to any injuries he sustained."
In plaintiff's reply it was alleged: "That if the driver had no specific authority to employ plaintiff, such employment was tacitly consented to by defendant milk company; and that the employment by said driver and others of various boys to assist in the delivery of milk for defendant was such a common practice that the milk company had actual or constructive knowledge and notice of such employment, and is estopped to deny the authority of its agent to employ plaintiff; that plaintiff had worked for Clinton Smith many times, and also for other drivers, all with full knowledge and consent of the milk company, and was so working at the time he was injured."
Jury trial.
The main features of the evidence were as outlined above. Other testimony more or less controverted was given by various witnesses. Curtis Kuhn was permitted to testify over objection that he arrived at the scene of the accident a very few minutes after it happened, and that he heard the motorman say, "I didn't see the wagon until we hit." The driver of the milk wagon testified that plaintiff himself had released the brakes, which started the mules before he (Smith) had entered the wagon.
Cross-examination:
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