Morris v. Atchison, T. & S. F. Ry. Co.
| Decision Date | 21 January 1967 |
| Docket Number | No. 44617,44617 |
| Citation | 422 P.2d 920,198 Kan. 147 |
| Parties | Brian Kent MORRIS, a minor, by Harold Morris, his father and next v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, a corporation, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In an action to recover for personal injuries sustained when plaintiff was run over by a car of defendant railway, the trial court found that at the time and place in question plaintiff was a trespasser on the tracks of defendant and that there was no evidence whatsoever of any willful or wanton act on the part of defendant which caused the injuries-and granted summary judgment for defendant. The record is examined and considered and it is held-no error shown.
C. K. Sayler, Topeka, argued the cause and David H. Fisher, Donald Patterson, Jack L. Summers and Edwin D. Smith Topeka, were with him on the brief for appellant.
W. E. Treadway, Topeka, argued the cause and C. J. Putt, J. B. Reeves and Roth A. Gatewood, Topeka, were with him on the brief for appellee.
This was an action to recover for the loss of an arm and a leg when plaintiff was run over by a car of defendant railway company.
The trial court sustained defendant's motion for summary judgment on the ground that at the time and place in question plaintiff was a trespasser on the tracks of defendant and that there was no evidence whatsoever of any willful or wanton act on the part of defendant's employees which caused the injury.
Plaintiff has appealed from that ruling.
In rendering judgment the trial court filed a memorandum decision which states succinctly (1) rules applicable to consideration of a motion for summary judgment; (2) the facts as shown by affidavits, depositions, admissions and answers to interrogatories; (3) rules of law applicable to the facts shown, and (4) the reasons for the decision.
Because all issues are thoroughly analyzed and discussed in the trial court's memorandum-we we quote it in full:
'MEMORANDUM DECISION
'This is an action brought by Brian Kent Morris, a minor now 18 years of age by his father and next friend against the Atchison, Topeka and Santa Fe Railway Company to recover damages for extremely serious personal injuries suffered by the plaintiff when he was run over by one of the defendant's railroad cars.
'A motion was filed by the defendant for summary judgment pursuant to K.S.A. 60-256. On November 12, 1965, the motion was argued and taken under advisement on written briefs to be submitted by counsel. Written briefs have now been received. In determining this motion the Court has considered the following affidavits and depositions which were introduced into evidence by the parties in connection with the motion:
'1. The affidavit of David W. Calwell with statements of plaintiff and the only two witnesses to plaintiff's accident attached thereto.
'2. The affidavit of W. T. Richardson.
'3. The affidavit of C. A. Holcombe with exhibit.
'4. The affidavit of David W. Calwell with attached photographs.
'5. The affidavit of David W. Calwell with copy of plat of the area.
'6. The affidavit of A. F. Ewart, Division Engineer of the defendant railway company with an engineer's drawing of the Emporia railroad yard.
'7. The affidavit of E. Blaine Gregory, Engine Foreman of the Atchison, Topeka and Santa Fe Railway Company.
'All of the above affidavits are attached directly to the motion for summary judgment which was filled by the defendant.
'In addition to this Court has considered the affidavit of Russ B. Anderson, two affidavits of Brian Kent Morris, and the affidavit of C. K. Sayler, all of which were furnished by counsel for plaintiff. In addition to this the Court has considered the deposition of Philip Holiday taken on behalf of the defendant for discovery purposes on September 9, 1965, and also the deposition of the plaintiff Brian Kent Morris on behalf of the defendant for discovery purposes on September 9, 1965. The Court has further considered the interrogatories to be answered by plaintiff together with the answers filed in response thereto and also the admissions of the defendant in response to plaintiff's requests for admissions, and also the interrogatories submitted to the defendant and the defendant's answers in response thereto. The matter is now ready for decision.
'DECISION OF THE COURT
It is the order of this Court that the defendant's motion for summary judgment be sustained and that summary judgment be entered in favor of defendant for its costs.
'RATIONALE OF THE DECISION
'As the Court understands it, the purpose of a motion for summary judgment under K.S.A. 60-256 is to being about an expeditious disposition of litigation without needless waste of time in trial formality where there is no bona fide issue of fact in dispute. The Court recognizes the following rules which should be applied in the consideration of a motion for summary judgment:
'1. On a motion for summary judgment the record including the evidentiary matter presented, must show beyond controversy that the allegations of the pleading need not be taken as true; and all doubts are resolved against the movant.
'2. If it appears from the pleadings and evidentiary matter presented that the Court would be compelled to direct a verdict for the defendant, a motion for summary judgment should be granted, not otherwise.
'3. On consideration of a motion for summary judgment the trial court may not consider credibility or weight of evidence and all doubts are resolved against the moving party.
'4. Summary judgment is an extreme remedy and should be granted only where the truth is not left in doubt. To justify such a judgment there must remain no bona fide issue of material fact.
'5. In considering a motion for summary judgment the court may not choose between conflicting possible inferences. It is not a substitute for the trial of issues of fact by court or jury.
'6. K.S.A. 60-256 relating to summary judgments should be cautiously invoked to the end that parties may always be afforded a trial where there is a bona fide dispute of facts between them.
'With the above rules in mind and interpreting all of the evidentiary matters now before the Court in a manner most favorable to the plaintiff and against the defendant movant, the undisputed facts in this case are clearly as follows:
'On July 20, 1964, the plaintiff Brian Kent Morris was 17 years of age. He had recently graduated from Emporia High School in Emporia, Kansas. He had been employed about three weeks before this date by the Anderson Cattle Company to unload hay off of trucks into a hay harn and perform other miscellaneous work on the Anderson Cattle Company premises on property located just outside the city limits of Emporia, Kansas. The defendant Santa Fe owned a yellow colored hay barn which was located on a tract of land owned by the Santa Fe and which constitutes a part of Emporia Yards of the Atchison, Topeka and Santa Fe Railway Company. The hay barn in question is painted the same color as the yard office of the Santa Fe. There was no fence dividing up any part of the premises and there is diect access from the hay barn to the siding tracks, stockyard, and the stockyard office. In 1961 the hay barn in question was leased by the Santa Fe to the Anderson Elevator Company. A copy of this lease is dated December 1, 1961, is attached to the affidavit of C. A. Holcombe. Attached to the lease is a scale drawing of the general area around the Santa Fe Yards and shows with particularity the location of the leased premises. The lease provides that the lessee Anderson shall use the premises exclusively for storing hay which will be ultimately purchased by the lessor. Both before and after July 20, 1964, the Santa Fe purchased hay out of the hay barn from Anderson for use in feeding cattle being shipped by the Santa Fe Railroad. The Anderson Cattle Company employees would periodically drive trucks to the barn and unload the hay from the trucks and unload it into the barn. The Santa Fe employees, of course, were familiar with this arrangement.
'The testimony of the plaintiff Brian Kent Morris and the witness Philip Holliday shows that on the date of plaintiff's injuries, July 20, 1964, they were employed by the Anderson Cattle Company to unload hay from the trucks into the Santa Fe barn. Several days before the date of plaintiff's injury employees of the Santa Fe had come to the hay barn and one of them told the two boys to get away from the barn if they wanted to smoke. It is clear from the statements and from the evidence that the plaintiff and Philip Holliday had been at the barn unloading hya from the trucks into the barn for several days. On July 20, 1964, the day was extremely hot and apparently the barn was practically loaded with may. The plaintiff and two of his co-workers, Philip Holliday and John Davis, were waiting for other trucks to bring more hay and they decided to get in the shade. The evidence is undisputed that they walked a distance of approximately 285 feet down a path to the tracks of the Santa Fe and proceeded to get underneath one of the Santa Fe railroad cars. The two boys, Philip Holliday and John Davis, are about the same age as the plaintiff. The plaintiff Brain Kent Morris testified that prior to July 20, 1964, he had never left his place of work at the hay barn to go to any standing cars on the railroad track; he further testified in his deposition that he had never crawled under a railroad car before nor had he ever seen anyone else crawl under a standing car before the afternoon of July 20, 1964. He further testified that he and the other two boys followed a path to the location of the railroad cars. The cars in question were flat cars used for the hauling of welded rails. The plaintiff Brian Kent Morris testified that when he crawled underneath the car, he looked to see whether or not there was a locomotive attached to the cars but that he did not see any. In...
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