Powers v. Kansas Power & Light Co.

• Decision Date: 21 October 1983
• Docket Number: No. 54334,54334
• Citation: 234 Kan. 89,671 P.2d 491
• Parties: Ray E. POWERS, et al., Appellants, v. KANSAS POWER & LIGHT CO., et al., Appellees.
• Court: Kansas Supreme Court

Page 491

671 P.2d 491

234 Kan. 89

Ray E. POWERS, et al., Appellants, v. KANSAS POWER & LIGHT CO., et al., Appellees.

No. 54334.

Supreme Court of Kansas.

Oct. 21, 1983.

Syllabus by the Court

1. Where no objection is made to an instruction it becomes the law of the case unless it is clearly erroneous.

2. An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility that the jury would have returned a different verdict.

3. Error cannot be predicated on the trial court's refusal to give an instruction when its substance is adequately covered in other instructions.

4. If jury instructions properly and fairly state the law as applied to the facts in the case when considered as a whole, and if the jury could not reasonably be misled by them, the instructions should be approved on appeal.

5. As a general rule electric companies which erect and maintain high voltage lines are under a duty to exercise the highest degree of care to protect the public from danger.

6. The degree of care required of distributors of electricity is the degree which would be used by prudent men engaged in the industry, under like conditions and commensurate with the dangers involved and the practical operation of the electrical distribution system, to guard against contingencies which can be reasonably foreseen and anticipated; but such distributors are not liable for occurrences which cannot be reasonably anticipated and are not insurers against accidents and injuries.

7. Evidence of prior similar accidents is admissible to prove foreseeability. Evidence of such occurrences, however, must involve substantially the same circumstances as the case at issue.

8. Error may not be predicated upon the exclusion of evidence which is merely cumulative and does not add materially to the weight or clarity of that already received.

9. Ordinarily, an issue not raised in the trial court cannot be raised for the first time on appeal.

Thomas Thompson, of Stoup & Thompson, Kansas City, Mo., and H. Reed Walker, of Barnett & Lerner, Chartered, Kansas City, argued the cause; James M. Barnett, of Barnett & Lerner, Chartered, Overland Park, and Arthur H. Stoup, of Stoup & Thompson, Kansas City, Mo., were on briefs for appellants.

Frederick K. Starrett, of Fisher, Ochs & Heck, P.A., Topeka, argued the cause and was on brief for appellee Kansas Power & Light Co.

Jerome V. Bales, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, argued the cause, and Michael P. Oliver, of the same firm, was with him on brief for appellee Contractors Supply Co.

William M. Modrcin, of Morris, Larson, King, Stamper & Bold, of Kansas City, Mo., argued the cause; Gordon N. Myerson, Kansas City, Mo., of the same firm, and Dennis Horner, of Horner, Duckers & Cornwell, Kansas City, were with him on brief for appellee Bucyrus-Erie Co.

MILLER, Justice:

This is an appeal by plaintiff, Ray E. Powers, from a judgment entered in District Court of Wyandotte County following a month-long jury trial and from the order overruling his motion for a new trial. Plaintiff's extensive personal injury claims arose on July 29, 1975, when a crane on which he was working came into contact with a high voltage power line. He brought this action against Kansas Power and Light Company, owner of the power line; Bucyrus-Erie Company, manufacturer of the crane; and Contractors Supply Company, the owner and lessor of the crane. His claims against Kansas Power and Light (KP & L) were based upon negligence, and against Bucyrus-Erie Company (B-E) and Contractors Supply Company (CSC) on both negligence and strict liability in tort. Plaintiff's employer and the lessee of the crane, United Structural Erectors, Inc., (USE) was joined as an additional party defendant, pursuant to K.S.A. 60-258a(d), on motion of the defendants for the purpose of having the percentage of its causal negligence determined. The jury returned a verdict finding the plaintiff to be ten percent and United Structural Erectors ninety percent at fault, and absolved the other defendants of contributing to or causing the injuries and damages. Plaintiff raises a number of issues, which we will separately state and determine later in this opinion.

The accident occurred during the construction of a new high school at Atchison, Kansas. Plaintiff was employed as an oiler for United Structural Erectors, a subcontractor on the job. USE was using a thirty-five ton lattice boom Bucyrus-Erie mobile crane which it was leasing from Contractors Supply Company. At the time of the accident, the crane was equipped with a 100-foot boom to which was attached a 20-foot jib. On the day of the occurrence, plaintiff drove the mobile crane and moved it from one side of the building to another. It was then necessary to level and stabilize the crane in its new location. During this operation, plaintiff stood on the ground and reached up on the crane to operate the controls of the outriggers. The crane operator, Joe Deatherage, moved the boom so that its position was away from the school and, unfortunately, in the direction of KP & L's high voltage power lines. An iron worker, Clyde Farlow, was up on the bed of the crane, checking its position with a carpenter's level. Plaintiff did not think that his job included looking out for power lines; others testified that this was one of the oiler's duties. The power lines were approximately 110 feet away and they were in compliance with all of the applicable electrical codes. Plaintiff, Deatherage and Farlow had all seen the power lines, but none of them were looking at or worrying about the high voltage lines.

As the plaintiff and the other two men went about the leveling process, the boom began to descend, coming down over the power lines. A foreman, standing nearby, yelled a warning and the operator attempted to raise the boom, but it was too late. The boom touched or nearly touched the electric line. Plaintiff, standing on the ground and touching the crane, was badly burned when the crane was electrified; neither Deatherage nor Farlow, both of whom were standing atop the crane, was injured. There was nothing mechanically wrong with the crane. It was examined carefully after the accident and no defects were found. USE continued to use the same crane on the same job site for months after the accident occurred, with no mechanical problem. If the crane had been put in neutral by its operator, the boom should not have descended.

There was much testimony about proximity warning devices and insulated links. Proximity warning devices are simply electrical mechanisms which sound an alarm or flash warning lights, or both, when the boom is approaching high voltage lines. An insulated link is designed to isolate the forward part of the hoist line or cable and cut off the flow of electricity should the suspended portion of the line come into contact with electric current. The crane in use at the time of injury was not equipped with either device. There was conflicting testimony about the effectiveness and desirability of equipping a crane with these safety devices. Additionally, plaintiff claims there were "no printed warning signs of contact with electrical lines" on the crane. This claim is disputed, and defendant presented evidence that there was an electrical warning sign on the cab of the crane.

Other evidence will be discussed as required in connection with the claims of error.

I. THE JURY INSTRUCTIONS

Plaintiff first claims that the trial court erred in its instructions to the jury and particularly in regard to instructions Nos. 3, 8 and 9. Before we go into the specific claims of error, we should first note some of the principles which guide us in reviewing claims of instructional error.

K.S.A. 60-251(b) provides:

"(b) When waived. No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he or she objects and the grounds of his or her objection unless the instruction is clearly erroneous."

Where no objection is made to an instruction it becomes the law of the case unless it is clearly erroneous. Black v. Don Schmid Motor, Inc., 232 Kan. 458, 472, 657 P.2d 517 (1983); Iseman v. Kansas Gas & Electric Co., 222 Kan. 644, 649, 567 P.2d 856 (1977). An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility that the jury would have returned a different verdict. State v. Stafford, 223 Kan. 62, 65, 573 P.2d 970 (1977).

Error cannot be predicated on the trial court's refusal to give an instruction when its substance is adequately covered in other instructions. Black v. Don Schmid Motor, Inc., 232 Kan. at 474, 657 P.2d 517; Van Hoozer v. Farmers Insurance Exchange, 219 Kan. 595, 614, 549 P.2d 1354 (1976).

Instructions are to be considered together and read as a whole, without isolating any one instruction. If jury instructions properly and fairly state the law as applied to the facts in the case when considered as a whole, and if the jury could not reasonably be misled by them, the instructions should be approved on appeal. Timsah v. General Motors Corp., 225 Kan. 305, 315, 591 P.2d 154 (1979); Black v. Don Schmid Motor, Inc., 232 Kan. at 474-75, 657 P.2d 517.

Instruction No. 3, as given by the trial court, is the "issues" instruction. It follows the familiar format of PIK Civ.2d 6.01, setting forth the plaintiff's claims, the defendants' various defenses, and the burden of proof. Plaintiff challenges this instruction and contends that it was wrong in many ways, and that it constitutes prejudicial error.

Plaintiff first contends that Instruction No. 3 did not specifically inform the jury that plaintiff was entitled to recover against Bucyrus-Erie and Contractors...