Rowell v. City of Wichita

• Citation: 176 P.2d 590,162 Kan. 294
• Decision Date: 25 January 1947
• Docket Number: 36681.
• Parties: ROWELL v. CITY OF WICHITA et al.
• Court: United States State Supreme Court of Kansas

176 P.2d 590

162 Kan. 294

ROWELL v. CITY OF WICHITA et al.

No. 36681.

Supreme Court of Kansas

January 25, 1947

Rehearing Denied March 12, 1947.

Appeal from District Court, Sedgwick County; Ross McCormick, Judge.

Personal injury action by Erma L. Rowell against the City of Wichita Kansas, and others. From an adverse judgment, plaintiff appeals.

Judgment reversed and cause remanded with instructions.

WEDELL J., dissenting in part.

Petition of stadium patron against owner, lessee and concession operator for injuries inflicted by beverage bottle, which was thrown by another patron or which fell from ledge, stated a cause of action.

Syllabus by the Court.

1. No cause of action for negligence is stated unless it is alleged that there is a duty on the part of one to protect another against injury, a breach of that duty, and that the injury received is the proximate result of that breach.

2. Negligence on the part of one in the use of his own property resulting in injury to another may make the owner liable therefor, notwithstanding the general purpose for which the property is used is lawful.

3. If the circumstances are such that a person of ordinary common sense who thought about it would recognize at once that if he did not use ordinary care in his own conduct with regard to those circumstances, his act would place another in danger, the duty to use such ordinary care to avoid the danger arises.

4. If there is some probability of harm sufficiently serious that ordinary men would take precautions to avoid it, then failure to take such care is negligence.

5. It is not a necessary element of negligence that one charged with it should have been able to anticipate the precise injury sustained.

6. The negligence charged must have been the proximate or legal cause of the injury, and what is the proximate cause is ordinarily a question for the jury.

7. The proximate cause of an injury is that cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the injury would not have occurred the injury being the natural and probable consequence of the wrongful act.

8. Natural and probable consequences are those which human foresight can anticipate because they happen so frequently they may be expected to recur.

9. Where the actor knows or has reasonable means of knowing that consequences not usually resulting from the act are likely to intervene so as to occasion damage, he is liable although it be not an ordinary and natural consequence of the negligence.

10. Two or more events may combine and concur to produce a result and both be a proximate cause.

11. A cause is concurrent if it was a cause which was operative at the moment of injury and acted contemporaneously with another cause to produce an injury and was an efficient cause in the sense that without it the injury would not have occurred.

12. If two distinct causes are successive and unrelated in operation they cannot be concurrent, but if the intervening cause was foreseen or might reasonably have been foreseen by the first actor, his negligence may be considered the proximate cause, notwithstanding the intervening cause.

13. The petition examined in an action for damages for injuries sustained, and held, to state a cause of action.

Fred Hinkle, of Wichita, for appellant.

Robert R. Hasty, of Wichita, for appellee Thomas Hopkins Post No. 4 of American Legion.

William Tinker, of Wichita (Glenn Porter, Getto McDonald, Arthur W. Skaer, Hugh P. Quinn, and Fred W. Aley, City Atty., all of Wichita, on the brief), for other appellees.

THIELE Justice.

This was an action wherein plaintiff sought to recover damages from three alleged joint tort feasors for personal injuries sustained. The demurrer of the defendants to plaintiff's amended petition was sustained, and she appeals, assigning the ruling as error.

The amended petition, hereafter called the petition, consumes twelve printed pages in the abstract, and an attached exhibit consumes nine more pages. An analysis of the petition and exhibit discloses the following allegations, as shown by numbered paragraphs:

1. Plaintiff lives in Wichita, Kansas.

2. The defendant City of Wichita is a municipal corporation.

3. The defendants Helgerson, Osment and Brazill are partners doing business under the name of the Wichita Catering Company.

4. The defendant The Thomas Hopkins Post No. 4 of the American Legion, is a corporation.

5. For brevity the defendants are referred to as the City, the Partnership and the Post.

6. On September 7, 1945, plaintiff filed her written claim for damages in the office of the city clerk of the City and transmitted copies to the Partnership and the Post. A copy of the claim is attached as an exhibit.

7. The City owned Lawrence Stadium, composed of a large number of concrete seats in vast rows, one above another, seating approximately twelve thousand persons in such manner as to overlook a vast field where entertainments and games may be presented. The City frequently leased the stadium for rent to organizations such as the Post.

8. On February 21, 1944, the Partnership entered into a contract with the City to engage in selling mild beverages and food to persons congregated in the stadium. Under the agreement the City received 32 1/2 percent of the gross sales, and in no event less than $11,000 per year, and during the period the Partnership was granted the sale and exclusive privilege of selling such beverages and food. Plaintiff does not have a copy of the contract and more definite detail cannot be set out, but the terms and provisions of the contract are definitely known to all of the defendants.

9. On June 26, 1945, the City leased the stadium to the Post for a paid consideration of $72.50 for a fireworks display and entertainment to be held July 3, 1945. The lease was subject to the agreement between the City and the Partnership.

10. The Post advertised its display and entertainment and invited plaintiff to attend and plaintiff purchased a ticket and attended. Upon presenting her ticket she was admitted and directed to a seat by ushers.

11. As soon as she was seated the Post, the City and the Partnership carelessly and negligently began the sale of beverages in large, heavy and dangerous glass bottles weighing from twelve to sixteen ounces, to approximately twelve thousand persons congregated in the stadium, and carelessly and negligently failed to provide the patrons with an adequate and safe means of disposing of the bottles and permitted the patrons to make such disposal thereof as their inclinations might prompt, and negligently and carelessly failed to have their salesmen and agents pour the beverages from the heavy glass bottles into paper cups or similar light containers which could not later fall with terrific force or be thrown by careless and heedless persons upon the head of plaintiff and other patrons of the defendants, thereby endangering the life and limb of plaintiff. The defendants not only failed to dispense the beverages in paper cups, but failed and neglected to immediately collect the heavy glass bottles after the beverages had been consumed by the patrons, and suffered the bottles to become vagrant among the patrons and to collect in large numbers upon the floor and aisles of the stadium, and upon the top ledge of the stadium, which ledge was about eighteen inches wide and forty inches high and adjacent to the exits from the stadium, and defendants negligently failed to foresee and anticipate that the bottles would be knocked from the ledge upon the head of plaintiff as she made an exit from the stadium and that they would be thrown by heedless and irresponsible patrons over the ledge and upon the head of the plaintiff as she made exit from the stadium.

12. After the entertainment on July 3, 1945, was concluded plaintiff started to leave the stadium and was proceeding through an exit in the north part of the stadium when an empty beverage bottle was thrown by a patron of the defendants out of the stadium and over the ledge above where plaintiff was proceeding through the exit, or was knocked off of the ledge by patrons of the defendants passing along the ledge to leave the stadium; that the ledge was about forty feet above the head of plaintiff and the bottle struck the head of plaintiff with great force, causing her great injuries; that the defendants separately and in conjunction negligently failed to anticipate and expect the occurrence, and carelessly failed to provide plaintiff a safe exit from the stadium.

13. That the defendants had long had knowledge of the danger of permitting beverage bottles to become vagrant and unconfined in the stadium and at a previous time had established a rule prohibiting the sale of beverages in bottles and directed by the rule that the same should be sold only in paper cups which could not cause injury, but at some date prior to the accident in question they had negligently removed and abated the rule, and permitted the unlimited sale and dispersal of glass bottles, which might accumulate on the seats, aisles and ledge of the stadium, because of defendants' failure to provide a safe place for patrons to deposit the bottles, and that the defendants, in manner mentioned, created and maintained a dangerous public nuisance which ultimately resulted in injury and damage to the plaintiff.

14. In this paragraph is a repetition of allegations that the defendants had knowledge that sales of bottled beverages might be expected to produce injuries, and further that in previous years the Post, with the City and Partnership, had presented the same type of entertainment, and that they knew that other persons attending...