Spencer v. Martin K. Eby Const. Co.

• Decision Date: 05 March 1960
• Docket Number: No. 41703,41703
• Citation: 350 P.2d 18,186 Kan. 345
• Parties: Thane H. SPENCER, Appellee, v. MARTIN K. EBY CONSTRUCTION COMPANY, Appellant.
• Court: Kansas Supreme Court

Page 18

350 P.2d 18

186 Kan. 345

Thane H. SPENCER, Appellee, v. MARTIN K. EBY CONSTRUCTION COMPANY, Appellant.

No. 41703.

Supreme Court of Kansas.

March 5, 1960.

Rehearing Denied April 13, 1960.

Syllabus by the Court

1. In a personal injury action the incidence of Federal or State income taxation is not a proper factor to be considered by the jury in making an award of damages.

2. The record in an action to recover damages for personal injuries examined and held that, under the facts, conditions and circumstances set forth in the opinion, the trial court did not err: (1) In refusing to give the jury an instruction requested by the defendant, nor in the instructions it gave the jury. (2) In refusing to set aside the verdict of the jury for the reasons that the amount of the verdict was excessive or that it was the result of bias or prejudice on the part of the jury. (3) In overruling defendant's motion for judgment notwithstanding the verdict. (4) In overruling the defendant's motion for a new trial.

William Tinker, Wichita, argued the cause, and Getto McDonald, Arthur W. Skaer, Jr., Hugh P. Quinn, William Porter, Alvin D. Herrington, Darrell D. Kellogg, and Richard T. Foster, Wichita, were with him on the briefs, for appellant.

John C. Frank, Wichita, argued the cause, and Tom Cunningham, Pat Kelly, Fred J. Gasser, and Robert Lomax, Wichita, were with him on the briefs, for appellee.

PARKER, Chief Justice.

This was an action to recover damages for injuries sustained in an intersection accident between two motor vehicles on September 8, 1955, at the Boeing Airplane Company plant in Wichita, Kansas. Plaintiff recovered and the defendant appeals.

The conditions and circumstances existing just prior to the accident are not in controversy and will be stated at the outset.

Motorized vehicles are operated along a number of lanes, otherwise known as streets within certain buildings of Boeing Plant II at Wichita, the involved accident occurring at the intersection of U Avenue and Thirty-fifth Street within one of such buildings.

U Avenue is a north-south through street with a fire wall running along its west side all the way to the ceiling of the building in which the accident occurred. It has a wide lane for motorized traffic and a narrower pedestrian lane, four or five feet in width, which extends to the fire wall. The motorized traffic and pedestrian lanes are divided by a white line.

Thirty-fifth Street is an east-west street, much narrower than U Avenue. It ends at U Avenue but intersects therewith, through means of an opening sixteen feet by sixteen feet, in the fire wall which permits east bound traffic on Thirty-fifth to enter the avenue and proceed in either direction. A stop sign, painted on the floor of Thirty-fifth street, just west of the fire wall warns traffic to stop before going through the opening in the wall and entering upon U Avenue.

During the summer and fall of 1955 the defendant, Martin K. Eby Construction Company, a corporation, was engaged in the performance of general construction work at the Boeing plant with its men and equipment. Included in its employees was one Cline who, on the date of the accident, was driving one of the defendant's forklift trucks.

The forklift, usually referred to by construction workers as a 'goose,' is a motorized type of equipment, which is five feet long with forks extending about three feet in front. It is commonly employed in lifting and transporting heavy items upon forks or prongs, which project to the front of the vehicle and can be lowered to the level of the floor and raised like an elevator several feet high. According to photographs it appears the driver sits behind the forks and slightly behind the front wheels of the vehicle, with his view ahead partially obstructed by the elevator mechanism of the lift.

On September 8, 1955, at approximately 12 o'clock noon, Cline, who had been driving the defendant's forklift truck in an easterly direction on Thirty-fifth street, approached the intersection at U Avenue. At that time he was dragging a steel plate beneath the forklift. This plate was about sixteen feet long, one foot wide and three-fourth's of an inch think. It was fastened to the forks which, as we have indicated, were three and one-half feet long, and projected beyond the forks another three feet. The front end of the plate was from eight to ten inches off the floor and the back end thereof was dragging on the floor.

On the morning of September 8, 1955, Thane H. Spencer, the plaintiff, a Boeing Airplane Company employee, then sixty years of age, was engaged in his usual work of hauling material within the Boeing plant. He was driving a Model A truck, specially constructed as a light vehicle for use inside a factory. At or about the moment Cline reached the intersection of Thirty-fifth Street and U Avenue in his forklift Spencer was driving his truck on the west side of U Avenue and reached the same intersection.

The only event, occurring after the two vehicles reached the intersection that can be classified as uncontroverted is that a collision immediately ensued.

Having related the foregoing uncontroverted facts it should now be stated the pleadings are not involved and need only be detailed to clarify the issues presented on appeal.

For present purposes it suffices to say that the amended petition charges that the involved accident and plaintiff's resulting injuries (describing them) were the direct and proximate result of and caused by the negligence and carelessness of defendant, by and through its agent and employee, Cline, and that the particular acts of negligence of the defendant included but were not limited to the following:

'(a) In driving said high-lift or goose at a high and dangerous rate of speed for the conditions prevailing;

'(b) In running the stop sign at the entrance of U Avenue and Thirty-fifth Street;

'(c) In failing to yield the right-of-way to traffic on U Avenue, which traffic ahd the right-of-way;

'(d) In driving through the entranceway of Thirty-fifth Street onto U Avenue when his vision was blinded and obscured, and he could not see traffic approaching on U Avenue.

'(e) In failing to maintain a proper lookout, and in failing to keep his high-lift or goose under proper control;

'(f) In so driving said high-lift or goose that he caused it to proceed into and against the rear of the truck operated by the plaintiff Spencer;

'(g) In failing to reduce his speed to avoid colliding with the truck operated by the plaintiff Spencer;

'(h) In failing to stop, swerve, turn aside or otherwise effectively control and maneuver his high-lift or goose in such a manner as to have avoided the collision;

'(i) In failing to stop at the stop sign at the entrance way of Thirty-fifth Street and U Avenue in violation of Section Nine (9) of the above described traffic regulation which provides:

'Traffic Signs--Stop, slow and caution signs must be obeyed. When approaching intersections, blind corners or locations where visibility is limited, operators will reduce speed.'

That the amended answer, after denying all material allegations of the petition, asserts that the accident and any and all injuries, if any, sustained by the plaintiff, were the result of and caused by his own acts of negligence and/or contributory negligence (describing them), which were the proximate, concurring or contributing cause of such accident or injuries to plaintiff.

And that plaintiff's amended reply denies in general terms each and every allegation of the amended answer inconsistent with the allegations of his amended petition and specifically denies that he was guilty of any of the acts of negligence or contributory negligence charged in such amended answer.

With issues joined as related the cause came on for trial by a jury. Plaintiff adduced his evidence to which defendant demurred. When this demurrer was overruled defendant adduced its evidence and plaintiff his rebuttal evidence. Thereupon defendant requested certain instructions some of which were denied. In one of the instructions denied the court was requested to instruct the jury that an award of damages for personal injuries is exempt from state and Federal income taxes. Thereafter the court gave its own written instructions, submitted special interrogatories, and directed the jury to retire to the jury room and deliberate on its verdict and answers to the interrogatories.

During the course of its deliberation the jury made inquiry to the court as to the taxability of its verdict. In response to this inquiry, over the objection of defendant, the court gave the jury the following written instruction:

'Pursuant to your verbal request as to whether or not in the event that the July will award the plaintiff damages, the amount would be taxable, you are instructed that you are not to consider in your deliberations the question whether or not the plaintiff would be liable for income tax upon any award of damages.'

Subsequently the jury returned a general verdict in favor of the plaintiff for the sum of $41,000, together with the special interrogatories and its answers thereto. They read:

'1. Do you find that the defendant was guilty of any act of negligence? Answer--yes.

'2. If you answered the preceding question 'yes' state what acts of defendant constituted such negligence. Answer--Forklift load was hanging out in right of way of U Avenue.

'3. Do you find that the plaintiff was guilty of contributory negligence? Answer--No.

'4. If you answer the preceding question 'yes' state what acts of the plaintiff constituted such contributory negligence. Answer _____

'5. What do you find was the proximate cause of the accident? Answer--Forklift load was hanging out in the right of way.'

Thereafter the defendant filed a motion for a new trial, a motion to set aside the verdict and answers to special questions, and a motion for a judgment notwithstanding the verdict....