Mayes v. The Kansas City Power and Light Company

• Decision Date: 09 October 1926
• Docket Number: 26,829
• Citation: 121 Kan. 648,249 P. 599
• Parties: T. M. MAYES, Appellee, v. THE KANSAS CITY POWER AND LIGHT COMPANY, Appellant
• Court: Kansas Supreme Court

249 P. 599

121 Kan. 648

T. M. MAYES, Appellee, v. THE KANSAS CITY POWER AND LIGHT COMPANY, Appellant

No. 26,829

Supreme Court of Kansas

October 9, 1926

Decided July, 1926.

Appeal from Wyandotte district court, division No. 3; WILLIAM H MCCAMISH, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Evidence--Res Ipsa Loquitur--Falling Light Globe. Plaintiff, rightfully on a public street, and without fault on his part, was injured by the falling of the globe of an ornamental street light constructed and maintained by the defendant: Held, proof of the falling of the light globe, with the accompanying circumstances, is evidence tending to show a lack of due care on the part of defendant in the construction and maintenance thereof, under the doctrine expressed by the maxim res ipsa loquitur.

2. SAME--Presumptions--Res Ipsa Loquitur. In actions for damages because of defendant's negligence, the negligence of defendant is never presumed, but must be established by proof. The cases in which res ipsa loquitur is applicable are no exceptions to this rule, but in such cases proof of negligence is made, if at all, by circumstantial evidence; that is, the proof of the casualty and of the surrounding circumstances are such as to leave no reasonable conclusion to be drawn therefrom other than that the casualty happened because of the negligence of the defendant.

3. SAME--Evidence--Burden of Proof--Rebutting Plaintiff's Evidence. In an action for damages because of negligence of defendant, when plaintiff has introduced evidence of defendant's negligence causing him injury, the defendant, to relieve itself from liability, is under the duty of producing evidence to offset or rebut that offered by plaintiff. This defendant may do by showing its own due care, even without showing the real cause of the accident, or by showing that the accident was caused by some third party, or by vis major. When evidence of this kind is offered by defendant, it is peculiarly the function of the jury to determine, from all the evidence concerning the question, whether the defendant was in fact negligent, and if such negligence was the proximate cause of the injury.

4. TRIAL--Special Findings--Facts Not Established by Evidence. The court is not required by R. S. 60-2918 to ask the jury to find specific facts not established by the evidence.

5. SAME--Instructions--Construction. Instructions given should be considered as a whole. When so considered in this case they are held not to be materially erroneous.

C. C. Glandon, Fred Robertson, both of Kansas City, William C. Lucas and Ludwick Graves, both of Kansas City, Mo., for the appellant.

J. H. Brady and T. F. Railsback, both of Kansas City, for the appellee.

OPINION

HARVEY, J.:

This is an action for damages for personal injuries. It is predicated upon the doctrine of res ipsa loquitur. There was a verdict and judgment for plaintiff. Defendant has appealed, and contends the court erred in overruling its demurrer to plaintiff's evidence, in refusing to submit special questions, and to give instructions requested, and in the instructions given. The questions here to be determined depend upon the proper understanding of the doctrine expressed by the maxim res ipsa loquitur and its application to the case before us.

Briefly, the facts are substantially as follows: The defendant Light and Power Company, under a written contract with, and ordinances of, the city of Kansas City, Mo., installed and maintained ornamental street lights upon certain streets of the city, including Grand avenue. In November, 1921, the American Legion convention met in Kansas City, and as a part of its program gave a street parade one afternoon. Plaintiff, a man fifty-eight years of age, a carpenter by trade, and a resident of Kansas City, Kan., and his son, a young man about twenty years of age, were among the spectators viewing the parade. The street was crowded. While plaintiff was standing on the sidewalk on Grand avenue, near one of the ornamental light posts constructed and maintained by defendant, viewing the parade, some one yelled "Look out!" Plaintiff looked up and saw one of the lamp globes falling toward him. He involuntarily threw his hand above his head. The lamp globe struck his hand, fell to the pavement and broke into many pieces. When the lamp globe struck his hand it cut a deep gash in the palm, near the base of the thumb, causing serious injury. On this appeal there is no controversy over the extent of plaintiff's injury, nor the amount of the verdict--if plaintiff is entitled to recover--hence we shall not concern ourselves with these matters. It was a clear day, with but little wind blowing. While the crowd was noisy, there is no evidence that anything was being dragged about the street, nor that missiles of any character were being thrown through the air.

Having shown these facts, plaintiff rested. Defendant's demurrer to the evidence was overruled. Defendant then offered evidence that the lamp, globe and fixtures were of the kind known as the upright Tilk lamp, the kind required by its contract with, and the ordinances of, the city, and that the same was a substantial lamp, fixtures and globes, entirely suitable for the purpose. It was practically conceded in the court below, and is conceded in this court, that no fault is found with the design of the lamp or fixtures. Defendant offered further evidence that it had competent, careful employees who installed, inspected and maintained the lamps; that a day or two before the parade its employees had taken the globes from the lamps, washed them and put them back. The employees who did the work testified to the careful manner in which this was done, and that each globe was put in its proper place and fastened with the set screws provided for that purpose, and the light bulb properly fixed inside of the globe, and when so placed and fastened the globe could not get loose nor fall unless it was struck with something and broken loose, and that the lamps and fixtures were inspected daily. They did say that, considering the possibility of error in any human endeavor, there was a bare possibility that some globe was not properly placed, or the set screws properly tightened, and the light bulb not properly placed in the globe, in which event the globe would roll off easily.

Defendant requested a peremptory instruction in its favor; this was denied. It then asked the court to submit to the jury three special questions: (1) What caused the lamp globe to fall? (2) What defect existed in the construction or maintenance of the globe and fixtures; and (3) if they found for plaintiff, to state of what defendant's negligence consisted. This request was refused. There is also a controversy concerning instructions refused, and those given, which will be later noted.

We shall not undertake an exhaustive treatment of res ipsa loquitur. Literally translated the phrase means "the thing itself speaks," or "the thing speaks for itself." It is a term used in a limited class of negligence cases, referring to the method of proof of general negligence (as distinct from proof of specific negligent acts or omissions), by proving the injury, together with the accompanying circumstances, from which it may be inferred, and is reasonable to infer, that the casualty happened only because of some negligence of defendant. In actions for damages because of defendant's negligence, the general rule is, of course, that the negligence of defendant is never presumed, but must be established by proof. The cases in which res ipsa loquitur is applicable are not exceptions to the general rule. "It does not dispense with proof of negligence in personal-injury cases." (Root v. Packing Co., 88 Kan. 413, 424, 129 P. 147.) Rather, in cases in which the phrase is applicable, proof of negligence is made, if at all, by circumstantial evidence; that is, the proof of the casualty and of the surrounding circumstances are such as to leave no reasonable conclusion to be drawn therefrom other than that the casualty happened because of the negligence of defendant. In Marceau v. Rutland R. R. Co., 211 N.Y. 203, 105 N.E. 206, it was said:

"It is merely a short way of saying that the circumstances attendant upon an accident are themselves of such a character as to justify the conclusion that the accident was caused by negligence. The inference of negligence is deducible, not from the mere happening of the accident, but from the attendant circumstances. 'It is not that, in any case, negligence can be assumed from the mere fact of an accident and an injury; but in these cases the surrounding circumstances which are necessarily brought into view by showing how the accident occurred, contain, without further proof, sufficient evidence of the defendant's duty and of his neglect to perform it. The fact of the casualty and the attendant circumstances may themselves furnish all the proof of negligence that the injured person is able to offer, or that it is necessary to offer.' (Shearman & Redfield on Negligence, § 59.)" (p. 206.)

In Griffen v. Manice, 166 N.Y. 188, 59 N.E. 925, it was said:

"It is not the injury, but the manner and circumstances of the injury, that justify the application of the maxim and the inference of negligence. . . . The application of the rule presents principally the question of the sufficiency of circumstantial evidence to establish, or to justify the jury in inferring, the existence of the traversable or principal fact in issue, the defendant's negligence. The maxim is also in part based on the consideration that where the management and control of the thing which has produced the injury is exclusively vested in the defendant, it is within his power to produce...