Scales v. St. Louis-San Francisco Ry. Co.

• Decision Date: 04 August 1978
• Docket Number: LOUIS-SAN,No. 49362,49362
• Citation: 582 P.2d 300,2 Kan.App.2d 491
• Parties: James E. SCALES, Appellee, v. ST.FRANCISCO RAILWAY COMPANY, Appellant, International Multifoods, Inc., Appellee.
• Court: Kansas Court of Appeals

Page 300

582 P.2d 300

2 Kan.App.2d 491

James E. SCALES, Appellee, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant, International Multifoods, Inc., Appellee.

No. 49362.

Court of Appeals of Kansas.

Aug. 4, 1978.

Review Denied Sept. 13, 1978.

Syllabus by the Court

1. The intent and purpose of the legislature in adopting K.S.A. 60-258a was to impose individual liability for damages based on the proportionate fault of all parties to the occurrence which gave rise to the injuries and damages even though one or more parties cannot be joined formally as a litigant or be held legally responsible for his or her proportionate fault. (Following Brown v. Keill, 224 Kan. 195, Syl. 6, 580 P.2d 867 (1978).)

2. It is not error for the trial court to advise the jury of the effect of their special answers on the awarded damages.

3. While it is error for the court to answer questions for the jury, except after prior notice to counsel for the parties, such error is not always of a sufficient gravity to require a new trial. Such error must be scrutinized in each case as to whether the same was harmless.

Robert L. White, Pittsburg; and Edward W. Mullen, of Deacy & Deacy, Kansas City, Mo., for appellant.

Robert J. Fleming, of Towner & Fleming, Pittsburg, for appellee.

Before MEYER, P. J., and ABBOTT and SWINEHART, JJ.

MEYER, Judge.

The jury in this personal injury case entered a verdict for the plaintiff, James Scales (hereinafter referred to as "appellee"), finding appellee's employer, International Multifoods, Inc. (hereinafter referred to as "Supersweet"), and defendant St. Louis-San Francisco Railway Company (hereinafter referred to as "appellant"), each guilty of 50 percent of the causal negligence resulting in the injury. The trial court entered judgment against appellant Only, for the full sum of appellee's damages. Appellant had moved for joinder of Supersweet, pursuant to K.S.A. 60-258a(C ). The trial court allowed Supersweet to be considered for purposes of "comparison only," but following Beach v. M & N Modern Hydraulic Press Co., 428 F.Supp. 956 (D.Kan.1977), assessed the full amount of appellee's damages against appellant. The trial court also refused appellant's requested instructions concerning the theory that plaintiff was a licensee, rather than an invitee.

Appellant's issues are as follows:

I. Should the trial court have directed a verdict for appellant or granted appellant's motion to set aside the judgment in accordance with its motion for directed verdict on the ground that:

A. Appellee was a licensee to whom appellant owed no duty except to refrain from willfully or wantonly harming him where there was no evidence of breach of such duty?

B. Even if appellee were considered an invitee, appellant owed him no duty with respect to open and obvious dangers of the existence of which appellee testified he was fully aware?

C. Appellee was guilty of more causal negligence as a matter of law than was appellant?

II. Did the court err in dismissing Supersweet as a party?

III. Did the court err in admitting evidence that:

A. Several years previously another employee had been injured by the same device without any showing that the circumstances and conditions were the same or similar, or that appellant had notice of such injury?

B. Appellee and his wife do not now intend to have children because of appellee's disability?

IV. Did the trial court commit error:

A. In instructing the jury that appellee was an invitee and refusing appellant's instruction concerning the duty owed a licensee, where the petition did not plead that appellee was an invitee but that he was the employee of a tenant, and where the evidence showed that appellee was, at most, a licensee?

B. In instructing the jury that the appellant owes to an invitee the duty both to make the premises safe And to warn him of dangerous conditions of which the proprietor knows and which are not known to the invitee, rather than stating that duty in the alternative, i. e., either to make the premises safe Or to warn invitees of dangerous conditions not known to them, and omitting a requested instruction that the jury find appellee did not know of the condition?

C. In instructing the jury by Instruction 9 concerning the effect of a finding of negligence of appellee and in permitting appellee's counsel to argue the effect of a finding of contributory negligence and apportionment of damages?

D. In giving confusing and conflicting instructions by instructing the jury in Instruction 9 that appellee's award was to be reduced by the ratio of his negligence to the total negligence of appellee and appellant, instructing the jury in Instruction 10 that they were not to reduce the damages by any percentage of fault, and instructing the jury in Instruction 11 that the jury "should Allow appellee such amount of money as will reasonably compensate him" and that the jury "should Award such sum as will fairly and adequately compensate him?"

E. In defining negligence in Instruction 9 as something that "an ordinary person" would or would not do rather than by the accepted standard of a "reasonably careful person?"

F. In omitting from Instruction 2 appellant's tendered issue of appellee's negligent failure "to keep a reasonable lookout where he placed his foot" by omitting from said instruction the words following "lookout?"

G. In instructing the jury by Instruction 5 that appellee did not have a duty to look for danger where there was no reason to apprehend any when said instruction was directly contrary to appellee's own testimony, and by omitting from said instruction the language submitted by appellant and adapted from PIK 13.06 concerning appellee's duties?

H. In instructing the jury by Instruction 6 that appellee had a right to assume that Supersweet had furnished him a safe place to work and safe machinery when all of the evidence was directly to the contrary, and in omitting from said instruction language submitted by appellant concerning Supersweet's duties under K.S.A. 44-104?

V. Did the trial court commit error in privately instructing the jury foreman concerning certain issues in the absence of counsel for both parties and in the absence of the other jurors?

VI. Did the trial court commit error in refusing to grant a new trial on the grounds that the verdict was against the weight of the evidence concerning appellee's contributory negligence and was induced by passion and prejudice?

VII. Did the trial court commit error in refusing to alter or amend the judgment to assess only one-half of the damages found against appellant?

The discussion that follows does not specifically address appellant's issues in the order they appear above. However, the opinion encompasses all of such issues which we feel have merit.

Appellant owned a spur track that ran along the east edge of a grain elevator and other industrial buildings to the south before merging with the main line track. An underground shaft ran from a point beneath the spur track into the grain elevator. Supersweet's auger was set in this shaft. There were two openings or "pits" in the shaft, one underneath and between the rails of the spur track, and the other two or three feet west of the first. Both openings had, at one time, been covered by grates, but the bars of the grates had eventually all been broken off.

Two written agreements between appellant and Supersweet were in effect at the time of appellee's injury: (1) a maintenance and use agreement; and (2) a lease agreement whereby Supersweet leased a portion of appellant's premises.

A. The spur track itself was not within the leased area, but the lease agreement gave Supersweet the right to install and maintain additional equipment (on the leased property) and to operate and maintain the auger as described in a memo appended to the lease agreement.

B. Paragraph 12 of the agreement provided that Supersweet would indemnify (and hold harmless) appellant for any injury to persons caused or directly contributed to by Supersweet's use or occupancy of leased premises. Any injury arising from concurrent negligence of both parties would be shared equally.

C. Paragraph 6 of the agreement stated that although Supersweet would install any unloading device, it could not leave any such device in use unattended.

D. Paragraph 9 of the agreement stated that lessee must keep the premises neat and in safe condition, free of debris and obstructions.

The purpose of running the shaft underneath the spur track was to facilitate unloading of the hopper cars, which were unloaded from the bottom. Supersweet employees then swept the spilled grain into the shaft while the auger was running. When the auger was not in use, the openings were covered by metal plates to keep out snow and rain.

On the evening of November 12, 1974, a boxcar of rice was unloaded. The following morning, appellee and another Supersweet employee began cleaning up the spilled rice. The other employee heard appellee scream. He looked up, realized the situation, ran into the elevator and turned off the auger.

Appellee testified that he was near the spur track and had been on the south side of the auger sweeping grain into the west pit opening. He "slipped, somehow" into the east opening beneath the track. He tried to stop the auger by jamming his broom handle into the auger. His right foot was caught up into the mechanism. As a result of the accident, appellee's leg was amputated below the knee.

Appellee alleged by his petition that: (a) his injury occurred on appellant's property; (b) appellant had a common-law duty to maintain his premises, the track and all improvements thereon, in a safe condition; and (c) by its contractual agreement with Supersweet, appellant had an additional duty by reason of contract to appellee.

At the beginning of the trial, appellant moved to join Supersweet, pursuant to K.S.A. 60-258a(C ). The court granted the motion initially, but later modified the order to conform...