Picou v. Kansas City Public Service Co.

• Decision Date: 06 March 1943
• Docket Number: 35636.,35616
• Parties: PICOU v. KANSAS CITY PUBLIC SERVICE CO.
• Court: Kansas Supreme Court

134 P.2d 686

156 Kan. 452

PICOU v. KANSAS CITY PUBLIC SERVICE CO.

Nos. 35616, 35636.

Supreme Court of Kansas

March 6, 1943

Syllabus by the Court.

Where objection to order overruling defendant's motion for judgment on opening statement of counsel was made and included in notice of appeal but was omitted from specification of error, it would not be reviewed.

A carrier of passengers for hire, including the street railway company, must use the highest skill, care and foresight practicable for safety of its passengers in the preparation and management of the means of conveyance furnished for that purpose.

A carrier is not an "insurer" of the safety of its passengers.

Street car company is not liable for injuries resulting from presence of banana peeling in street car unless its employees placed the object there, knew of its presence, or it had been there such a length of time before accident as would induce notice to the carrier.

In ruling on defendant's demurrer to evidence, all competent evidence must be accepted as true and reasonable inferences to be drawn therefrom must be indulged in favor of party adducing it, and the same rule applies on a motion for directed verdict.

In street car passenger's action against carrier for injuries sustained when passenger slipped on banana peeling evidence which failed to show when banana peeling was placed in aisle, how long it had been there before accident or where it came from was insufficient for jury on question of negligence of carrier.

Denial of motion for directed verdict is not an "appealable order".

Orders overruling demurrers to evidence are "appealable orders".

In passenger's action against street car company for injuries sustained when passenger slipped on banana peeling in aisle of street car, where evidence of negligence of carrier was insufficient for jury and carrier appealed from orders overruling carrier's demurrers to evidence judgment was reversed and cause remanded with instructions to enter judgment for carrier. Gen.St.1935, 60-3317.

1. It is the duty of a carrier of passengers for hire, including a street railway company, to use the greatest skill, care and foresight practicable for the safety of its passengers in the preparation and management of the means of conveyance furnished for that purpose.

2. A carrier is not the insurer of the safety of its passengers.

3. A foreign object, such as a banana peeling, is not a peril to be reasonably expected and a street car company is not liable for injuries resulting from its presence in a street car owned and operated by it unless its servants, agents or employees placed the object there, knew of its presence, or it had been there such a length of time as to impute notice to such carrier.

4. In a ruling on a demurrer to evidence, all competent evidence must be accepted as true and all reasonable inferences to be drawn therefrom must be indulged in favor of the party adducing it.

5. The evidence examined and held that the demurrer to plaintiff's evidence and the demurrer at the close of trial to all the evidence should each have been sustained.

Appeal from District Court, Wyandotte County; Willard M. Benton Judge.

Special injury action by John Picou against the Kansas City Public Service Company. From an order overruling defendant's demurrer at close of plaintiff's evidence and overruling defendant's demurrer and request for instructed verdict at the close of all evidence, defendant appeals and from order granting defendant a new trial, plaintiff cross-appeals.

Judgment reversed and cause remanded with instructions on defendant's appeal, and plaintiff's appeal dismissed.

Edward M. Boddington, of Kansas City (Fred Robertson and J. O Emerson, both of Kansas City, and Charles L. Carr, of Kansas City, Mo., on the brief), for appellant and cross-appellee.

Joseph Cohen, of Kansas City, for appellee and cross-appellant.

PARKER Justice.

This action was for damages for personal injuries alleged to have been sustained by plaintiff as a result of having slipped on some foreign object, allegedly a banana peeling, while he was a passenger on a street car owned and operated by defendant.

Pleadings of the parties were not in issue. All we need say with respect to them is that the petition was sufficient in form and stated a cause of action for damages based on the negligence of defendant. The answer contained a general denial and properly pleaded contributory negligence. The reply was a general denial.

The facts as disclosed by the record are that on February 1, 1939, the defendant was and for some time prior thereto had been a common carrier, engaged in the business of operating a street car system. On January 31, 1939, at 11:54 p. m. a 33d and Parallel street car west bound toward Kansas, in charge of one of the defendant's operators, left the east end of defendant's line at 27th and Denver, Kansas City, Mo., and from there proceeded to 12th and Woodlawn where it was boarded (exact hour not apparent from the record) by the plaintiff as a passenger. From there it moved to 12th and Washington, at which point at about 12:24 a. m. on February 1, 1939, this operator was relieved by another who continued in charge until the car reached the Kansas line and was in charge at about 12:40 a. m. when plaintiff suffered his injury at 5th and Minnesota, Kansas City, Kansas.

The plaintiff claims a period of forty minutes elapsed from the time he boarded the car until he left it; that the banana peeling on which he slipped was black and dry around the edges; that when he entered the car he and a friend sat down in the third seat from the rear and remained there; that no one sat in the two or three seats ahead of him; that no one was seen to bring a bundle, package or sack into the car and no one was seen to be eating or peeling bananas; and that as he left his seat he took one step and slipped on a banana peeling. As to most of these claims the evidence was conflicting but for purposes of determination of these appeals we will accept plaintiff's version as to each and all of the facts and treat them as undisputed. We also concede his position there was no evidence tending to show contributory negligence.

It is not necessary for us to attempt to abstract the mass of evidence offered in support of other facts relied upon by the parties. It suffices to say, that if there was sufficient evidence to place responsibility on defendant for the object which caused plaintiff to slip and fall, there was, as to the manner in which the injury occurred, the extent of the injury and the damages suffered, adequate testimony, although disputed, to justify its submission to a jury for consideration and determination.

With this in mind, we have carefully searched the record to ascertain the time when the banana peeling was first observed by any witness and find that plaintiff and the friend who boarded the car with him --who, incidentally, were the only witnesses who claimed to have observed such an object in the street car--each stated they saw nothing resembling a banana peeling prior to the time plaintiff slipped and fell and that it was not until after the accident when defendant was helped to his feet, that they, or either of them, saw portions of a banana peeling on the floor of the aisle of the car near the seat plaintiff had been occupying.

On this evidence the trial court submitted this case along with special questions and in due time the jury returned a general verdict in favor of plaintiff together with its special answers.

In view of the conclusions reached and hereafter announced, it is not necessary to devote much time to the verdict or to these special questions and findings. They are, however, of interest in that they confirm our conclusions and will be briefly referred to. In the interest of brevity it can be said that the answers to all of the questions were in line with plaintiff's version of the entire situation, and supported the verdict returned in his favor. However, three of the questions and the answers thereto challenge our attention and are of such importance we feel they should be set out in full in this opinion:

"Q. No. 3: If you answer Questions 1 and 2 in the affirmative, then state whether or not the banana peel had remained in the aisle for such a length of time prior to the time plaintiff slipped that defendant's operator could have or should have removed it from the aisle before plaintiff slipped? A. Yes.

"Q. No. 4: If you answer Question No. 3 in the affirmative, then state, (a) How long the banana peel had remained in the aisle before plaintiff slipped; and (b) What facts and circumstances were present which would impute knowledge to defendant's operator? Ans. (a) Prior to the time the car left 27th and Denver. (b) We do not think the proper inspection was made.

*****

"Q. No. 10: If you find for plaintiff, then state specifically what act or acts of negligence defendant was guilty. Ans. Neglect of inspection of car."

At the conclusion of plaintiff's testimony the defendant demurred to the evidence on the ground it was insufficient to constitute a cause of action. Ruling on this demurrer was deferred and the trial proceeded. Later this demurrer was overruled. At the close of all testimony defendant renewed its demurrer, and specifically called the court's attention to the following: "That the plaintiff has wholly failed to show the length of time that the alleged object was on the floor of the street car and as a result of that has wholly failed to prove wherein the defendant or its operator had an opportunity with the highest degree of care in the practical operation of the street car to know and remove any foreign object from the floor." This demurrer was...