McCracken v. Stewart

• Decision Date: 10 November 1950
• Docket Number: No. 37999,37999
• Citation: 223 P.2d 963,170 Kan. 129
• Parties: McCRACKEN v. STEWART et al.
• Court: Kansas Supreme Court

Page 963

223 P.2d 963

170 Kan. 129

McCRACKEN v. STEWART et al.

No. 37999.

Supreme Court of Kansas.

Nov. 10, 1950.

Rehearing Denied Dec. 2, 1950.

Syllabus by the Court.

1. In testing the sufficiency of evidence as against a demurrer, the court shall consider all of plaintiff's evidence as true, shall consider that favorable to plaintiff, together with all reasonable inferences to be drawn therefrom and disregard that unfavorable to plaintiff, and shall not weigh any part that is contradictory, nor weigh any differences between his direct and cross-examination, and if so considered, there is any evidence which sustains the plaintiff's case, the demurrer should be overruled.

2. In determining whether a plaintiff is guilty of contributory negligence, when tested by demurrer or on motion for a directed verdict, the question must be submitted to the jury if the facts are such that reasonable minds might reach different conclusions thereon.

3. Record examined and held: There is no evidence to sustain a recovery for loss of profits or remuneration from plaintiff's business.

4. Where at the trial of a cause some of the issues are properly determined and others are either improperly or not determined and they are distinct from each other, there is no necessity to retry those issues properly determined.

Arnold C. Todd, of Wichita, argued the cause, and D. Emmett Foley, also of Wichita, was with him on the brief, for the appellants.

Patrick J. Warnick, of Wichita, argued the cause, and Alan B. Phares, and Clyde M. Simon, also of Wichita, were with him on the brief, for the appellee.

WERTZ, Justice.

This was an action brought by appellee to recover damages for personal injuries suffered when the truck he was driving went into the excavated portion of a street being repaired by defendant construction company, alleged to have been caused by defendants' negligence in failing to have proper barriers or warning lights. Defendants appeal from a jury verdict for plaintiff.

Plaintiff's evidence in support of allegations contained in his petition is as follows: Plaintiff, a man 37 years of age, was engaged in a partnership business with his wife in the sale of janitor's supplies. He traveled as a salesman over the west three-fourths of Kansas, operating the supply business from a half-ton pick-up truck in which he kept his supplies. The truck was owned by his wife. The partnership had been in existence since February, 1947.

That on and prior to September 22, 1947, defendants--a partnership doing business as Globe Construction Company--were engaged under proper authority with the city of Wichita, Kansas, in preparation of Garland Street for paving between 18th and 20th Streets, that portion being known as the 1900 and 2000 blocks. Defendants had commenced to excavate the west half of Garland Street between 18th and 19th Streets known as the 1900 block, the excavated portion commencing at 18th Street and extending north towards 19th Street and ending 200 feet south of 19th Street.

At about midnight on September 22, 1947, plaintiff was proceeding south on Garland Street and when he reached the intersection of 19th Street, he observed an unlighted barrier extending across the west half of Garland Street, thereby leaving the east half of Garland Street open to traffic. He observed a car coming towards him from the south on the east side of the street. He shifted his truck to second gear, retarded its speed to 20 miles, turned his truck to the left and east side of Garland Street and around the unlighted barrier so that the car approaching from the south could pass him and proceed on north. Plaintiff's truck proceeded on south in second gear about 100 feet at which time he observed an unlighted and unbarricaded excavation on the west side of Garland Street, 15 feet ahead of him. He attempted to turn his truck sharply to the left towards the east side of Garland Street but the right front wheel of his truck engaged a portion of the excavated part of the street causing him to lose control of the truck and it turned over on its top in the excavated portion of the street, injuring plaintiff. The night was clear but dark. There were no lights anywhere in the area and no signs or warnings either at the north end or east side of the excavated portion of the street, the east half of the street having been left open for traffic and so used. Evidence disclosed that the distance between the barricade at 19th Street and the excavated portion was from 100 to 200 feet. Two police officers were called to the scene immediately after the accident and they testified there were no burning lights of any kind and no barricades at the excavation; that they attempted to light the unlighted lanterns at the 18th and 19th street barricades, but they would not burn. They returned to the city yards, obtained lanterns and placed them at the barricades and at the excavated portion of the street as a warning to street travelers.

Testimony of plaintiff's doctor disclosed that plaintiff suffered a sacroiliac sprain; that he suffered from shock, an abrasion of the left elbow, arm and shoulder; that he had some torn muscles and abrasions on the right knee; injury to his hip, and a strained or torn muscle. The doctor prescribed light treatment and a sacroiliac belt; and further testified he had given him light treatments; that lifting objects aggravated his condition; and that, in his opinion, plaintiff would never fully recover. He suggested that plaintiff try light work and do no heavy work for at least a year; thought he was slowly improving; and stated his doctor bill to date including the sacroiliac belt was $200. Defendants' doctor examined plaintiff in October, 1947, and testified that there appeared to be considerable muscle, spasm preventing movement of plaintiff's spine, and also considerable tenderness under pressure in the lower part of the back. X-rays showed a strain in the dorsal portion of the spine, the lumbo portion of the spine, which was the result of muscle spasm; and that he had a permanent injury to his back requiring further further treatment.

As to plaintiff's loss of earnings during his disability, plaintiff testified that by reason of a tornado damaging his home he lost all his records and papers pertaining to the income from his business as a salesman and partner in the janitor supply business including his income tax report, but that his best recollection was that his average daily income was approximately $25. No further evidence was tendered as to his daily profits.

The plaintiff rested his case and defendants interposed a demurrer on the ground that the evidence failed to disclose facts sufficient to support the allegations contained in plaintiff's petition and for the further reason that the evidence shows plaintiff to be guilty of contributory negligence as a matter of law, which is the basis of defendants' first assignment of error.

We shall first consider whether the demurrer to the evidence should have been sustained. In so considering, we will not weigh evidence, and will give the evidence of the plaintiff a liberal construction, resolving all doubt against defendants. Where reasonable minds might reach a conclusion in favor of plaintiff, the demurrer should be overruled. Revell v. Bennett, 162 Kan. 345, 176 P.2d 538; Langston v. Butler, 165 Kan. 703, 199 P.2d 190; Hill v. Southern Kansas Stage Lines Co., 143 Kan. 44, 53 P.2d 923; Jones v. McCullough, 148 Kan. 561, 83 P.2d 669; Smith v. Kansas City, 158 Kan. 213, 146 P.2d 660. A review of the evidence discloses that defendants contracted to excavate and pave a public street. According to the nature of the task it was their duty to warn the public of the possible danger incident thereto. The construction was in a dark section of the city; inadequate warning signals were placed at the entrance of the area but none at or near the excavated part thereof. A motorist traveling upon the east side of the street left open for traffic would not have sufficient notice of the lurking danger.

Defendants further contend that since appellee saw the barrier at the intersection of 19th and Garland Streets, and slowed down and circumvented the barrier without any mishap, he should have been apprised of some sort of later danger because of the barrier at 19th Street, and that by continuing on with his truck in second gear and until the accident occurred, he was guilty of contributory negligence as a matter of law.

Plaintiff (appellee) does not contend that it was the failure of defendants to properly warn of the approach to the excavated area alone which led to the accident, but rather that act coupled with defendants' failure to erect warnings at the north and east edges of the excavation which contributed to the injury.

This court has repeatedly stated that in determining whether a plaintiff is guilty of contributory negligence, when tested by demurrer or on motion for a directed verdict, the question must be submitted to the jury if the facts are such that reasonable minds might reach different conclusions thereon. See also Smith v. Kansas City, supra; Jones v. McCullough, supra; and Hill v. Southern Kansas Stage Lines Co., supra.

Applying the foregoing rule, we hold the evidence established negligence on the part of appellants. The unlighted barrier at 19th Street covering the west half of Garland Street may be considered as a warning, but the east half of the street being left open for travel and so used was certainly some invitation to the plaintiff to proceed with caution, which the evidence shows he did. He was not bound to anticipate pitfalls in the street that were hard to observe in the absence of lights or other warnings. In view of the evidence we cannot say as a matter of law that defendants were not guilty of negligence in failure to properly warn travelers by the use of barricades or lights, nor can we say that plaintiff was guilty of contributory...